                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA


    JULIO LAMBOY RUIZ,

                         Plaintiff,

                         v.                               Case No. 1:19-cv-03765 (TNM)

    MILLENNIUM SQUARE RESIDENTIAL
    ASSOCIATION, et al.,

                         Defendants.


                                      MEMORANDUM OPINION

        Last year, Julio Lamboy Ruiz discovered significant water damage inside the walls of his

condominium unit. This damage, he believes, was caused by the building’s chilled water

equipment and pipes, which the Millennium Square Condominium Associations 1 (“Millennium

Defendants”) and the site manager—Ritz-Carlton Hotel Company (“Ritz-Carlton” or “Hotel”)—

improperly installed, repaired, or maintained. He sued the Millennium Defendants and Ritz-

Carlton seeking compensation for damage to his property.

        Defendants moved to dismiss or compel arbitration. Ruiz now admits that his claims

against the Millennium Defendants should go to arbitration, though he urges this Court to stay

rather than dismiss the case. Still, he maintains that he has stated a claim for negligence against

Ritz-Carlton and he insists that the Court should not compel arbitration of that claim.

        The Court agrees with Ruiz that his Amended Complaint has stated a valid claim for

negligence. But because this negligence claim is intertwined with Ruiz’s claims against the



1
 The Millennium Square Condominium Associations include Millennium Square Residential Association,
Millennium Square Unit Owners Association, and Millennium Square Commercial Association. See Am. Compl. 1,
ECF No. 18.
Millennium Defendants, the Court will compel Ruiz to arbitrate this claim with Ritz-Carlton.

While arbitration is pending, the Court will stay proceedings against all Defendants.

                                       I. BACKGROUND

       Ruiz owns a condominium unit within the Millennium Square condominium project

(“Condominium”) in Washington, D.C. See Am. Compl. ¶¶ 2–3, ECF No. 18. The

Condominium is a “mixed-use” condominium with residential units, like the one owned by Ruiz,

and commercial units, operated by Ritz-Carlton. Id. ¶¶ 5, 10.

       The top floor of Ruiz’s unit is adjacent to the Condominium’s mechanical facilities room.

Id. ¶ 14. Ruiz alleges that last year, some chilled water equipment in the mechanical room

entered a “blowdown or flushing mode” which caused the room’s floor drain to overflow. Id.

¶ 15. This overflow caused about 20–30 gallons of water to infiltrate Ruiz’s unit. Id.

       A few days later, Ruiz discovered mold and water in his unit. Id. ¶ 16. Over the next two

months, he had several portions of the ceilings and walls opened and discovered that the

insulation surrounding the pipes was “heavily waterlogged,” caused by “excessive condensation

of the pipes.” Id. ¶¶ 17–20 (capitalization altered).

       The water caused more than $575,000 of damage to Ruiz’s property. Id. ¶ 29. Ruiz

claims the Millennium Defendants and Ritz-Carlton caused these damages through the

“erroneous operation of the chilled water system . . . and/or [] faulty insulation and/or the faulty

installation and/or maintenance of the insulation and/or piping.” Id. ¶ 21.

       Ruiz suggests that the Condominium Bylaws obligated the Millennium Defendants to

maintain the chilled water system, insulation, and pipes. The Bylaws “govern the respective

rights and obligations” between Ruiz and the Millennium Defendants. Id. ¶ 22. And they

allocate responsibilities for the “maintenance, repair and replacement” of the Condominium’s




                                                  2
“Common Elements.” Id. ¶ 23. According to the Bylaws, the Unit Owners Association is

responsible for the “General Common Elements,” the Residential Association is responsible for

the “Residential Limited Common Elements,” and the Commercial Association is responsible for

the “Commercial Limited Common Elements.” Id. “Despite investigation,” Ruiz was unable to

determine to what category of elements the water chilling equipment and pipes belong. Id. ¶ 26.

And Defendants’ representatives have provided Ruiz with “conflicting information . . . regarding

the operation, control, maintenance, and/or responsibilities of the facilities and instrumentality at

issue in this litigation[.]” Id. ¶ 25.

          Ruiz also faults Ritz-Carlton. He alleges that it “assumed certain maintenance and repair

responsibilities” that “obligate the Hotel to maintain, repair and replace the facilities and

instrumentalities at issue in this litigation including, but not limited to, the Pipes.” Id. ¶ 27.

Ritz-Carlton and the Commercial Association have a Management Agreement that gives the

Hotel the responsibility to “cause the Common Elements of the Condominium to be repaired,

restored, cleaned, added to, improved, altered, replaced or maintained in such condition as may

be required by . . . the Bylaws.” 2 See Ritz-Carlton Mot. to Dismiss 13 (“Ritz Mot.”), ECF No.

22-2; Management Agreement 4, Ritz Mot., Ex. A, ECF No. 22-3. 3




2
  Although Ruiz did not attach the Management Agreement to his Amended Complaint, the Court may consider the
contract to evaluate Ritz-Carlton’s Motion to Dismiss since Ruiz referenced and relied on this contract in his
Amended Complaint. See infra III.A.1; Sierra v. Hayden, 254 F. Supp. 3d 230, 236 (D.D.C. 2017) (“In evaluating a
Rule 12(b)(6) motion to dismiss, a court may consider the facts alleged in the complaint, documents attached as
exhibits or incorporated by reference in the complaint, or documents upon which the plaintiff’s complaint
necessarily relies even if the document is produced not by the parties.” (cleaned up)). Ruiz does not identify the
Management Agreement by name, but he alleges that Ritz-Carlton assumed maintenance responsibilities for the
Condominium. Am. Compl. ¶ 27. This is enough to incorporate the document. See Sierra, 254 F. Supp. 3d at 236
(“A document need not be mentioned by name to be considered ‘referred to’ or ‘incorporated by reference’ into the
complaint.” (cleaned up)).
3
    All page citations are to the page numbers generated by the Court’s CM/ECF system.


                                                         3
        Ruiz sued the Millennium Defendants for violating the D.C. Consumer Protection

Procedures Act, breach of the bylaws, breach of the implied duty of good faith and fair dealing,

and negligence. Am. Compl. ¶¶ 31–53. He also sued the Hotel for negligence. Id. ¶¶ 48–53.

        The Millennium Defendants moved to compel arbitration or, in the alternative, to

dismiss. See Millennium Mot. to Compel, or, Mot. to Dismiss (“Millennium Mot.”), ECF No.

19-1. In response, Ruiz admitted that arbitration is required for all claims against these

Defendants. 4 See Ruiz Resp. to Millennium’s Mot. to Compel 1 (“Ruiz Millennium Resp.”),

ECF No. 24. Ritz-Carlton also moved to dismiss or, in the alternative, to compel arbitration. See

Ritz Mot. at 4. These motions are ripe for the Court’s review.

        The Court has diversity jurisdiction over this case, since Ruiz is a citizen of North

Carolina, Millennium Defendants are incorporated in the District of Columbia, and Ritz-Carlton

is a Delaware limited liability company with its principal place of business in Maryland. See

Am. Compl. ¶¶ 1–11; 28 U.S.C. § 1332. The amount in controversy exceeds $75,000. Am.

Compl. ¶¶ 11, 29.

                                      II. STANDARD OF REVIEW

        To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead “factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id.




4
 Ruiz agreed that his claims against the Millennium Defendants should go to arbitration if the Millennium
Defendants modified the arbitration agreement to permit a jointly-approved arbitrator. Ruiz Millennium Resp. at 3.
The Millennium Defendants agree that this term should be modified. Millennium Reply 3, ECF No. 26. So the
Court will allow Ruiz and Millennium Defendants to jointly approve an arbitrator. See D.C. Code § 42-1902.08(a);
Booker v. Robert Half Int’l, Inc., 413 F.3d 77, 83 (D.C. Cir. 2005).



                                                        4
       In assessing plausibility, the Court may consider only “the facts alleged in the complaint,

any documents either attached to or incorporated in the complaint and matters of which [it] may

take judicial notice.” Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017) (internal

quotations omitted). And it must generally “accept as true all of the complaint’s factual

allegations and draw all reasonable inferences in favor of the plaintiff[].” Owens v. BNP

Paribas, S.A., 897 F.3d 266, 272 (D.C. Cir. 2018). But a complaint containing only

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements” and factually void legal conclusions cannot withstand a motion to dismiss. Iqbal,

556 U.S. at 678–79.

       Courts evaluate motions to compel arbitration under Federal Rule of Civil Procedure

56(c). See Aliron Int’l, Inc. v. Cherokee Nation Indus., Inc., 531 F.3d 863, 865 (D.C. Cir. 2008).

The party seeking to compel arbitration must first present “evidence sufficient to demonstrate an

enforceable agreement to arbitrate.” Hill v. Wackenhut Servs. Int’l, 865 F. Supp. 2d 84, 89

(D.D.C. 2012) (internal quotations omitted). Then the burden shifts to the non-moving party “to

raise a genuine issue of material fact as to the making of the agreement, using evidence

comparable to that identified in Fed. R. Civ. P. 56.” Id. (cleaned up). “The Court will compel

arbitration if the pleadings and the evidence show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.” Fox v.

Comput. World Servs. Corp., 920 F. Supp. 2d 90, 96 (D.D.C. 2013) (cleaned up).

                                         III. ANALYSIS

       A. Ritz-Carlton’s Motion to Dismiss

       To plead negligence against the Hotel, Ruiz must allege facts showing that (1) Ritz-

Carlton owed a duty to him; (2) it breached that duty; and (3) Ruiz’s injury was proximately




                                                 5
caused by the breach. See Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 793 (D.C. 2011).

Ritz-Carlton urges three justifications for dismissal. First, it suggests that Ruiz failed to plead

that it owed Ruiz any duty. See Ritz Mot. at 9–16. Second, Ritz-Carlton challenges Ruiz’s

pleading of breach. Id. at 11. Finally, it claims that Ruiz’s negligence claim is barred by the

economic loss doctrine. Id. at 16–17.

               1. Ruiz pleaded that Ritz-Carlton owed him a duty of care.

       Ritz-Carlton suggests that Ruiz failed to sufficiently plead that it owed him a duty, both

because Ruiz “fails to characterize the specific legal duty owed to him” and because it “owes

him no duty as a matter of law.” Ritz Mot. at 10–12. The Court disagrees on both fronts.

       To begin, Ruiz does characterize Ritz-Carlton’s legal duty in his Amended Complaint. It

alleges that the Hotel “assumed certain maintenance and repair responsibilities that it knew or

should have known would directly impact the Plaintiff which such assumed responsibilities

obligate the Hotel to maintain, repair and replace the facilities and instrumentalities at issue in

this litigation including, but not limited to, the Pipes.” Am. Compl. ¶ 27. In other words, the

Amended Complaint alleges that Ritz-Carlton voluntarily undertook maintenance and repair

responsibilities for the pipes and other chilled water equipment. These responsibilities, Ruiz

insists, imposed a duty on Ritz-Carlton to exercise reasonable care when repairing and

maintaining the chilled water equipment. See Ruiz Opp’n to Ritz-Carlton’s Mot. to Dismiss 11–

12 (“Ruiz Ritz Opp’n”), ECF No. 23.

       Though Ruiz does not explain in detail how the Hotel assumed certain maintenance

responsibilities or what those responsibilities covered, Ruiz has pleaded facts, not mere legal

conclusions. See The Scowcroft Grp., Inc. v. Toreador Res. Corp., 666 F. Supp. 2d 39, 42

(D.D.C. 2009) (“Although a complaint does not need detailed factual allegations, a plaintiff’s




                                                  6
obligation to provide the grounds of his entitlement to relief ‘requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.’”

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))). Ruiz’s Amended Complaint

does not specifically say that the Millennium Defendants and Ritz-Carlton had a Management

Agreement, but it alludes to that agreement. 5 Am. Compl. ¶ 27. And, though he does not quote

the exact language from the Management Agreement, he alleges that those maintenance

responsibilities obligated the Hotel to maintain and repair the Condominium’s chilled water

instrumentalities (including the pipes). 6 Id. Ruiz has thus pleaded enough facts to allege that

Ritz-Carlton owed him a duty of care based on the Management Agreement.

        A separate question is whether the Hotel’s assumption of maintenance duties—through

the Management Agreement—imposes a duty on the Hotel to act with reasonable care toward

Ruiz. Ritz-Carlton maintains that it cannot.

        First, Ritz-Carlton insists that the Management Agreement, as a contract, could not be the

basis of a tortious duty. Ritz Mot. at 12. Within the District, it notes, generally a “tort must exist

in its own right independent of the contract” and “any duty upon which the tort is based must

flow from considerations other than the contractual relationship.” See id. (quoting Choharis v.

State Farm Fire & Cas. Co., 961 A.2d 1080, 1089 (D.C. 2008)) (emphasis added).




5
 Indeed, Ritz-Carlton acknowledged that Ruiz’s Amended Complaint incorporated by reference the Management
Agreement and attached the agreement to its Motion to Dismiss. See Ritz Mot. at 12 n.3.
6
  The attached Management Agreement does not undermine this allegation. Ruiz’s Amended Complaint seems to
allege that the chilled water equipment and pipes are “common elements” of some kind—though he could not
determine whether the equipment was “a General Common Element, a Residential Limited Common Element or a
Commercial Limited Common Element.” Am. Compl. ¶ 26. And, as Ritz-Carlton itself acknowledges, the attached
Management Agreement requires the Hotel to “cause the Common Elements of the Condominium to be repaired,
restored, cleaned, added to, improved, altered, replaced or maintained in such condition as may be required by the
Declaration and Bylaws[.]” Ritz Mot. at 13 (quoting Management Agreement at 4) (emphasis added).


                                                        7
       True enough. That may be so if there were a “contractual relationship” between Ritz-

Carlton and Ruiz. When a defendant has breached a contract with a plaintiff, courts in the

District generally do not permit the plaintiff to sue in both tort and contract because doing so is

“duplicative and unsustainable.” Himmelstein v. Comcast of the Dist., LLC, 908 F. Supp. 2d 49,

55 (D.D.C. 2012).

       But the Hotel admits it “has no contractual relationship with Plaintiff.” Ritz Mot. at 12.

Instead, its contract is with Millennium Square Commercial Association. Id. And this contract

may create certain duties in tort to affected third-parties. See Presley v. Commer. Moving &

Rigging, Inc., 25 A.3d 873, 888 (D.C. 2011) (“In the absence of contractual privity with an

unrelated third party, whether a party should have foreseen that its contractual undertaking was

necessary for the protection of the third party is important.”); see also Vantage Commod. Fin.

Servs. I, LLC v. Assured Risk Transf. PCC, LLC, 321 F. Supp. 3d 49, 64 (D.D.C. 2018)

(“Defendants note that these undertakings were contractual obligations to [the signatory] but do

not explain why they cannot also be tort obligations to [the non-signatory].”).

       The D.C. Court of Appeals has turned to Restatement (Second) of Torts § 324A, to

determine whether a party performing services under a contract assumes a tortious duty to an

independent third party. See Presley, 25 A.3d at 889. Section 324A recognizes that:

       “One who undertakes, gratuitously or for consideration, to render services to
       another which he should recognize as necessary for the protection of a third
       person or his things, is subject to liability to the third person for physical harm
       resulting from his failure to exercise reasonable care to protect his undertaking, if
            (a) his failure to exercise reasonable care increases the risk of such harm, or
            (b) he has undertaken to perform a duty owed by the other to the third person,
            or
            (c) the harm is suffered because of reliance of the other or the third person
            upon the undertaking.”

§ 324A, Restatement (Second) of Torts.




                                                  8
         Ritz-Carlton’s alleged duty arises under the scenario envisioned by Section 324A(b).

That is, Ruiz’s Amended Complaint alleges that the Millennium Defendants owed him a duty to

maintain and repair the chilled water equipment under the Bylaws. See Am. Compl. ¶¶ 23, 40,

49. And, he suggests, Ritz-Carlton assumed that duty through its contract with the Commercial

Association. Id. ¶ 27. Further, since Ritz-Carlton undertook maintenance responsibilities for the

residential sector of the Condominium, it should have foreseen that these responsibilities were

“necessary for the protection” of the residential unit owners or their property. Since Ruiz alleged

Ritz-Carlton undertook “to render services to [Millennium] ‘which [it] should recognize as

necessary for the protection of [Ruiz] or his things,’” Ruiz has pleaded that the Hotel owed “a

duty of reasonable care to [him].” See Vantage, 321 F. Supp. 3d at 64.

         To be sure, Ruiz’s briefing on this issue is not pellucid. There, he insists that the Hotel’s

duty is “independent of the Condominium Management Agreement” and of the Bylaws. 7 See

Ruiz Ritz Opp’n at 8, 10. Indeed, his brief seems to suggest that the Hotel undertook this duty

by voluntarily beginning work on equipment. Id. at 11. He likens this assumption of duty to a

landlord who “generally owes no duty to his tenants to renovate the leased premises,” but owes a

duty to exercise reasonable care “once he begins to renovate and improve the property.” Id.

(quoting Towers Tenant Ass’n, Inc. v. Towers Ltd. P’ship, 563 F. Supp. 566, 570 (D.D.C. 1983)).

In the same way, he concludes, “[o]nce the Hotel began its work, the Hotel owed a duty to the

residents of the Condominium to exercise reasonable care in the performance of those activities.”

Id. at 11–12.


7
   Despite his assertion that the Hotel’s duty is independent of the Management Agreement and Bylaws, Ruiz repeats
in this same section of the brief that Ritz-Carlton had a duty of care because it “agreed to repair and maintain the
chilled water equipment including the insulation and Pipes.” Ruiz Ritz Opp’n at 11. And he cites cases that
conclude that one “can be liable to a third party if his failure to exercise reasonable care increases the risk of harm or
if he has undertaken to perform a duty that the person he is serving owed to the third party.” Id. (quoting Vantage,
321 F. Supp. at 64).



                                                            9
        But where in the Amended Complaint does Ruiz allege that Ritz-Carlton “began work”

on the chilled water equipment? The Complaint states only that Ritz-Carlton assumed

maintenance responsibilities and had to repair and maintain the chilled water equipment,

presumably because of the Management Agreement. See Am. Compl. ¶ 27; see also Ruiz Ritz

Opp’n at 11 (“[T]he Hotel agreed to repair and maintain the chilled water equipment including

the insulation and Pipes.” (emphasis added)). No facts in the Amended Complaint support

Ruiz’s new theory that the Hotel “began its work” maintaining and repairing the equipment and

then failed to “exercise reasonable care in the performance of those activities.” Id.

        So, though Ruiz sufficiently pleaded that the Hotel owed a duty to him because of the

Management Agreement and Bylaws, Ruiz failed to allege facts that would establish an

independent duty based on the Hotel’s work on the equipment.

        Next, Ritz-Carlton argues that even if it would normally owe a duty to Ruiz, the

exculpatory clause in its Management Agreement absolves it of this duty. See Ritz Mot. at 12–

15. The Management Agreement—under the heading “Indemnification and Reimbursement”—

states that the Hotel:

        “assumes no liability whatsoever for . . . any and all claims or damages or injuries
        to persons or property by reason of any cause whatsoever, either in or about the
        Condominium, or any Residential Unit when and during the time that Manager is
        providing management services set forth in this Agreement . . . unless such claim
        results from the intentional or willful misconduct or acts amounting to fraud of
        Manager . . . .”

Management Agreement at 13–14; see Ritz Mot. at 13–14.

        This language, of course, may prevent the Commercial Association from holding the

Hotel liable for any damage to the Condominium or residential units. But that’s not this case.

Ritz-Carlton cites no precedent suggesting that someone like Ruiz—who is not a party to the

contract—is bound by that contract’s exculpatory clause.



                                                 10
       Indeed, caselaw suggests the opposite. Consider Miles v. Naval Aviation Museum

Foundation, Inc., 289 F.3d 715 (11th Cir. 2002). There, the plaintiff sued the U.S. Government

when one of the nose gear wheel valves of a plane formerly owned by the Government broke off

and crushed the plaintiff’s leg. Id. at 716–17. The plaintiff claimed that before the plane was

sold, the Government negligently performed mandatory inspections on the plane and negligently

failed to train and certify the mechanics testing the plane. Id. at 717–18.

       The contract of sale included an exculpatory clause where the buyer agreed that the

Government had no liability for any injury caused by the plane. Id. at 717. In litigation, the

Government pointed to this clause, suggesting that it “relieve[d] it from any previous negligent

inspections.” Id. at 720. The court disagreed. Id. The clause might require the buyer to

indemnify the Government. Id. But this clause did not affect the plaintiff’s claim because “he

was not a party to the contract.” Id.; see also Air Prod. & Chems., Inc. v. Eaton Metal Prod. Co.,

No. 02-cv-1277, 2003 WL 22133839, at *20 (E.D. Pa. Aug. 22, 2003) (“[Defendants] may not

use the exculpatory clause as a defense to [Plaintiff’s] negligence claim for the simple reason

that exculpatory clauses may only be asserted against contracting parties.”).

       So too here. The exculpatory clause in the contract between the Commercial Association

and Ritz-Carlton cannot bar Ruiz’s case since “[i]t goes without saying that a contract cannot

bind a nonparty.” EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (2002). The clause may

require Millennium to indemnify Ritz-Carlton, but it can do no more.

               2. Ruiz adequately pleaded breach of Ritz-Carlton’s duty.

       Ritz-Carlton also suggests that Ruiz failed to plead enough facts to establish a breach of

its duty. Again, the Court disagrees.




                                                 11
       Ruiz plausibly alleged that Ritz-Carlton owed a duty to maintain the chilled water

equipment because of its Management Agreement with the Millennium Square Commercial

Association. See supra III.A.1. And Ruiz alleged that Ritz-Carlton failed to maintain the

equipment. Am. Compl. ¶ 28. Since Ruiz alleges that the Hotel breached its duty when it failed

to act when it was obligated to, there are no other “specific acts” for Ruiz to allege. See, e.g.,

Bankers Stand. Ins. Co. v. All-Pro Servs., Inc., 19-cv-1052, 2020 WL 1695086, at *3 (D.D.C.

Apr. 7, 2020) (finding that the plaintiff alleged enough facts to specify the negligent act when the

complaint alleged the defendant “‘fail[ed] to ensure the safe operation of the subject boiler and

its associated components,’ and ‘fail[ed] to hire competent agents, workmen and/or employees to

service, maintain, clean and/or inspect the subject boiler’”). So Ruiz’s negligence claim will not

be dismissed for a failure to state a breach of duty.

               3. Ruiz’s negligence claim is not barred by the economic loss doctrine.

       Finally, Ritz-Carlton urges that the economic loss doctrine bars Ruiz’s negligence claim.

But because Ruiz’s Amended Complaint seeks compensatory damages for property loss, not

pure economic loss, this doctrine does not apply.

       Under the economic loss doctrine, “purely economic losses” are not recoverable in tort

unless a “special relationship exists” between the plaintiff and defendant. Aguilar v. RP MRL

Wash. Harbor, 98 A.3d 979, 986 (D.C. 2014). This means that plaintiffs are barred from seeking

recovery of lost profits or lost wages—unconnected to any injury to body or property—in a

negligence action. Id. at 982–83.

       Yet Ruiz insists—and Ritz-Carlton apparently concedes—that he has only alleged

property damages. Ruiz Ritz Opp’n at 9; Ritz Reply 4, ECF No. 25 (“By Plaintiff’s own

admission, he alleges property damages, not pecuniary loss.”). Ritz-Carlton never tries to show




                                                 12
how the damages Ruiz alleges are “purely economic damages.” Instead, its brief concentrates on

whether Ruiz falls under the “special relationship” exception. See Ritz Mot. at 16–17. But the

Court only considers this exception if the economic loss doctrine applies in the first place. Since

Ritz-Carlton does not explain how the economic loss doctrine bars Ruiz’s claim, the Court will

not dismiss on this basis.

               4. Ruiz’s claim for attorneys’ fees will be dismissed.

       But the Court will grant Ritz-Carlton’s motion to dismiss Ruiz’s claim for attorneys’ fees.

Ritz Mot. at 17. In the District of Columbia, “a plaintiff litigating a civil action must bear his

own attorney’s fees and expenses absent a contractual or statutory basis for liability,” unless he

falls within a small set of narrow exceptions such as bad faith. Safeway Stores, Inc. v.

Chamberlain Protective Servs., Inc., 451 A.2d 66, 68–69 (D.C. 1982). As Ritz-Carlton notes,

Ruiz has “not alleged that there is any statutory, contractual, or common-law exception that

would entitle him to recover attorneys’ fees[.]” Ritz Mot. at 17–18. Indeed, Ruiz does not

respond at all to the Hotel’s motion to dismiss the claim for attorneys’ fees. The Court therefore

treats this argument as conceded and will dismiss Ruiz’s claim for attorneys’ fees against Ritz-

Carlton. See D.D.C. LCvR 7(b); Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014)

(“[I]f a party files an opposition to a motion and therein addresses only some of the movant’s

arguments, the court may treat the unaddressed arguments as conceded.”).

       B. Ritz-Carlton’s Motion to Compel Arbitration

       In the alternative to its Motion to Dismiss, Ritz-Carlton urges the Court to compel Ruiz to

arbitrate his claims, based on the doctrine of estoppel. See Ritz Mot. at 19. Since Ritz-Carlton

and Ruiz are not in contractual privity, no written agreement binds Ruiz to arbitrate his claims

against the Hotel. Yet Ruiz admits that his claims against the Millennium Defendants are subject




                                                 13
to arbitration, according to the Condominium Bylaws. See Ruiz Millennium Resp. at 1. Since

Ruiz’s negligence claim against Ritz-Carlton is “intertwined” with his claims against the

Millennium Defendants, the Court will grant Ritz-Carlton’s Motion to Compel Arbitration.

       Under the doctrine of estoppel, a “signatory to an arbitration agreement may be

compelled to arbitrate with a non-signatory when the non-signatory is seeking to resolve issues

that are intertwined with an agreement that the signatory has signed.” Fox v. Comput. World

Servs. Corp., 920 F. Supp. 2d 90, 103 (D.D.C. 2013). There is no express test for determining

whether issues are sufficiently “intertwined.” Yet other judges in this District have found

estoppel to be appropriate where “there would be no claim against the nonsignatory if the

underlying contract never existed[.]” Riley v. BMO Harris Bank, N.A., 61 F. Supp. 3d 92, 99

(D.D.C. 2014); see also Kelleher v. Dream Catcher, LLC, 278 F. Supp. 3d 221, 225–26 (D.D.C.

2017) (finding a non-signatory’s claims “‘intertwined’ with those against the signatory to the

contract” when the plaintiff’s claims against the non-signatory “exist only because of the

Contract”).

       Take Riley. There, the plaintiff sued a group of banks for their “participation in a scheme

to . . . collect unlawful debts[.]” Riley, 61 F. Supp. 3d at 94. The plaintiff obtained the loans

from a separate group of lenders and her agreements with those lenders contained arbitration

clauses. Id. at 95. Though the banks were not parties to those contracts, they sought to compel

arbitration based on the doctrine of estoppel. Id. at 98–99.

       The court granted the motion, finding that the plaintiff’s claims against the banks were

“intertwined” with the claims subject to arbitration. Id. at 100–01. The relevant question, the

court explained, was “whether the agreements need[ed] to be ‘relied upon’ or [were] ‘integral’ to

establishing the violation alleged by Plaintiff.” Id. at 100. There, the plaintiff referenced the




                                                 14
loan agreements throughout her complaint. Id. at 95. And each of her claims against the banks

“relie[d] on the allegation that Plaintiff’s loan agreements were invalid[.]” Id. at 99. Since

“Plaintiff’s factual allegations indicate[d] that her claims [arose] from” the loan agreements, the

court found that her claims against the banks were “thus intertwined with the loan agreements

containing the arbitration provision.” Id. at 100.

        Ruiz’s claim against Ritz-Carlton is similarly intertwined with the claims against the

Millennium Defendants—with whom he agreed to arbitration in the Condominium Bylaws.

Ritz-Carlton’s alleged duty to Ruiz arises from the Hotel’s maintenance responsibilities under

the Management Agreement with the Commercial Association. See supra at III.A.1. Through

the Management Agreement, the Commercial Association assigned some of its maintenance and

repair responsibilities to Ritz-Carlton. See Management Agreement at 4. Of course, the

Commercial Association could only assign maintenance and repair responsibilities to Ritz-

Carlton that it itself had.

        And Ruiz’s Amended Complaint suggests that the Millennium Defendants did have these

maintenance responsibilities, under the Bylaws. Ruiz alleges that, among other things, the

Millennium Defendants had a contractual duty under the Bylaws to “maintain, repair and replace

the facilities and instrumentalities at issue in this litigation including, but not limited to, the

Pipes.” See Am. Compl. ¶ 40. He also alleges that the Millennium Defendants breached this

contractual duty by “failing to maintain, repair and replace the facilities and instrumentalities

under their respective control in a manner consistent with the Bylaws.” Id. ¶ 41.

        An arbitrator will determine whether the Millennium Defendants, in fact, had this duty

and breached it. This finding is “integral” to whether Ritz-Carlton also owed a duty to Ruiz.

Ritz-Carlton’s duty arose only because it had “undertaken to perform a duty owed by the other to




                                                   15
the third person.” See § 324A(b), Restatement (Second) of Torts. If the Millennium Defendants

owed no duty to Ruiz to repair or maintain the equipment, then neither could Ritz-Carlton. So

while Ruiz is not suing Ritz-Carlton for breach of the Bylaws, interpretation of the Bylaws and

resolution of Ruiz’s claim for breach of contract against the Millennium Defendants are integral

to determining whether Ritz-Carlton is liable for negligence. Accord Riley, 61 F. Supp. 3d at 100

(“[F]or a court to find Plaintiff’s claims ‘intertwined’ with the agreements containing the

arbitration provision, Plaintiff need not claim that Defendants breached those agreements

themselves; instead, the relevant question is whether the agreements need to be ‘relied upon’ or

are ‘integral’ to establishing the violation alleged by Plaintiff.”).

         But even if Ruiz’s claim against Ritz-Carlton did not depend on the Bylaws, the claims

against Ritz-Carlton and the Millennium Defendants are still “intertwined” for a separate reason:

Ruiz asserts the same claim for negligence against all Defendants. See Sakyi v. Estee Lauder

Co., Inc., 308 F. Supp. 3d 366, 385 (D.D.C. 2018) (compelling arbitration on estoppel grounds

where “the plaintiff assert[ed] the exact same claims, based on the same operative set of facts”

against the non-signatory defendant as he had against the signatory defendant (internal quotation

omitted)).

         Count IV—the negligence claim—is asserted “[a]gainst all Defendants.” Am. Compl. at

9. Ruiz alleges that “Defendants, individually and collectively, owed a duty to maintain, repair

and replace the facilities and instrumentalities at issue” and that they “individual[ly] and

collectively” breached that duty. 8 Id. ¶¶ 49, 51. More, the negligence claim against each

Defendant is “based on the same operative set of facts.” Id. ¶¶ 13–30. That is, Ruiz alleges that


8
  The only legal distinction between Ruiz’s negligence claim against Defendants is the basis for the legal duty:
arising from the Bylaws for the Millennium Defendants and the Management Agreement for Ritz-Carlton. Am.
Compl. ¶ 50.



                                                         16
the Condominium’s chilled water equipment and pipes damaged his unit and that the Millennium

Defendants and Ritz-Carlton caused that damage by failing to maintain or repair the equipment.

And Ruiz seeks the same amount in monetary damages—$575,525.64—from all Defendants

based on the property damage to his unit. Id. at 6–9.

          Because Ruiz seeks to hold Defendants “individually and collectively” responsible for

the same damage to his unit caused by the same negligent acts relying on the same underlying

facts, Ruiz’s claim against Ritz-Carlton is “intertwined” with his case against the Millennium

Defendants. Accord Fox, 920 F. Supp. 2d at 103–04 (compelling plaintiff to arbitrate claims

with a non-signatory to an arbitration agreement on estoppel grounds because plaintiff’s “claims

against all defendants [were] identical”). The Court will, thus, compel arbitration on Ruiz’s

negligence claim against Ritz-Carlton.

          C. The Court Will Stay the Case Pending Arbitration.

          Ruiz and the Millennium Defendants agree that all claims against the Millennium

Defendants are subject to arbitration. Ruiz Millennium Resp. at 1; Millennium Reply 3, ECF

No. 26. They disagree, though, whether the Court should stay the case pending arbitration or

dismiss the claims. Ruiz Millennium Resp. at 5; Millennium Reply at 3.

          The Courts of Appeals are also divided on this issue. 9 The question arises from a conflict

in how to interpret Section 3 of the Federal Arbitration Act (“FAA”):

          “If any suit or proceeding be brought in any of the courts of the United States
          upon any issue referable to arbitration under an agreement in writing for such
          arbitration, the court in which such suit is pending, upon being satisfied that the
          issue involved in such suit or proceeding is referable to arbitration under such an
          agreement, shall on application of one of the parties stay the trial of the action
          until such arbitration has been had in accordance with the terms of the agreement,
          providing the applicant for the stay is not in default in proceeding with such
          arbitration.”


9
    The D.C. Circuit has not opined on it. See Ryan v. BuckleySandler, LLP, 69 F. Supp. 3d 140, 147 (D.D.C. 2014).


                                                         17
9 U.S.C. § 3 (emphasis added).

        On its face, Section 3 appears to leave the Court with only one option when it determines

that an issue in a suit is “referable to arbitration”: “on application of one of the parties,” the

Court “shall . . . stay the trial of the action.” Id. And other courts have accepted this reading.

The Third Circuit, for instance, has held that courts must stay—rather than dismiss—the action

while the claims are in arbitration. See Lloyd v. Hovensa, LLC, 369 F.3d 263, 269 (3d Cir.

2004). It reasoned that “[t]he statute clearly states, without exception, that whenever suit is

brought on an arbitrable claim, the Court ‘shall’ upon application stay the litigation until

arbitration has been concluded.” Id. at 269. The Seventh and Tenth Circuits agree. See Cont’l

Cas. Co. v. Am. Nat. Ins. Co., 417 F.3d 727, 732 n.7 (7th Cir. 2005) (“[T]he proper course of

action when a party seeks to invoke an arbitration clause is to stay the proceedings pending

arbitration rather than to dismiss outright.”); Adair Bus Sales, Inc. v. Blue Bird Corp., 25 F.3d

953, 955 (10th Cir. 1994) (holding that under Section 3, the “proper course” of action for the

district court would be to “stay the action pending arbitration”).

        Yet the Millennium Defendants urge the Court to rely on cases that deviate from the plain

language of the statute. See Millennium Reply at 3–4. These cases ultimately determine that

Congress could not have meant for courts to retain cases when all issues in the lawsuit are

arbitrable. The Fourth Circuit, for example, maneuvered around Section 3’s plain language,

holding that “[n]otwithstanding the terms of § 3 . . . dismissal is a proper remedy when all of the

issues presented in a lawsuit are arbitrable.” Choice Hotels Int’l, Inc. v. BSR Tropicana Resort,

Inc., 252 F.3d 707, 709–10 (4th Cir. 2001) (emphasis added). The Fifth Circuit, likewise, leaned

on congressional intent, reasoning that Section 3 “was not intended to limit dismissal of a case in

the proper circumstances.” Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir.




                                                   18
1992). There would be no reason to stay the case when all claims are subject to arbitration, the

Fifth Circuit concluded, because “retaining jurisdiction and staying the action will serve no

purpose.” Id. (quoting Sea-Land Serv., Inc. v. Sea-Land of P.R., Inc., 636 F. Supp. 750, 757

(D.P.R. 1986)).

       The Ninth Circuit, agreeing with the Fourth and Fifth Circuits, has also provided little

analysis to support its interpretation of Section 3. In Sparling v. Hoffman Construction Co., the

court dismissed the plaintiff’s claims based exclusively on its reading of an earlier Ninth Circuit

case. See 864 F.2d 635, 638 (9th Cir. 1988). It read its precedent to say that Section 3 “gives a

court authority, upon application by one of the parties, to grant a stay pending arbitration, but

does not preclude summary judgment when all claims are barred by an arbitration clause.” Id. at

638 (citing Martin Marietta Alum’m, Inc. v. Gen. Elec. Co., 586 F.2d 143, 147 (9th Cir. 1978)).

Yet the court in Martin Marietta declined to issue a stay because the parties did not apply for a

stay and “a request for a stay is not mandatory” under Section 3. 586 F.2d at 147. The Sparling

Court did not acknowledge this reasoning or make any independent effort to grapple with

Section 3’s statutory language.

       But “even the most formidable argument concerning the statute’s purposes could not

overcome” a statute’s clear text. See Kloeckner v. Solis, 568 U.S. 41, 55 n.4 (2012). And these

cases’ reasons for diverging from the plain language of the text are not “formidable.” The

Millennium Defendants fail to explain why the Court should not read this language to mean that

the stay is mandatory. This Court thus will adhere to the plain language of Section 3. Once a

party moves for a stay, Section 3 provides no menu of options. It dictates that the Court “shall

. . . stay the trial of the action[.]” 9 U.S.C. § 3. The Court will do so here.




                                                  19
         Neither Ritz-Carlton nor Ruiz address whether the Court should likewise impose a stay or

dismiss Ruiz’s claim against the Hotel. Section 3’s mandate to stay litigation applies to “any

issue referable to arbitration under an agreement in writing for such arbitration[.]” Id.

(emphasis added). Here, the Court is ordering arbitration with Ritz-Carlton based on the doctrine

of estoppel, not because of “an agreement in writing.” See supra III.B. So the Court need not

stay this portion of the case. See Toledano v. O’Connor, 501 F. Supp. 2d 127, 153 (D.D.C.

2007) (finding that a non-signatory to an arbitration agreement “may not succeed in obtaining a

mandatory stay pursuant to the FAA based on equitable estoppel grounds”).

         Still, because neither party requests that the claim against Ritz-Carlton be dismissed

pending arbitration and because the related claims against the Millennium Defendants will be

stayed, the Court will exercise its discretion to stay the case against Ritz-Carlton as well. See

Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (“[T]he power to stay proceedings is incidental

to the power inherent in every court to control the disposition of the causes on its docket with

economy of time and effort for itself, for counsel, and for litigants.”). This will allow the related

claims to move along the same track.

                                        IV. CONCLUSION

         For these reasons, Ritz-Carlton’s Motion to Dismiss will be granted in part and denied in

part. The Court will dismiss Ruiz’s claim for attorneys’ fees against Ritz-Carlton but will not

dismiss Count IV of the Amended Complaint. The Millennium Defendants’ and Ritz-Carlton’s

Motions to Compel Arbitration will be granted. The Millennium Defendants’ Motion to Dismiss

will be denied as moot. The Court will stay the case during arbitration. A separate Order will

issue.
                                                                            2020.06.11
                                                                            12:49:29 -04'00'
Dated: June 11, 2020                                   TREVOR N. McFADDEN, U.S.D.J.


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