                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 WHARF, INC., et al.,

              Plaintiffs,

         v.                                                 Civil Action No. 15-1198 (CKK)

 DISTRICT OF COLUMBIA, et al..,

              Defendants.



                                   MEMORANDUM OPINION
                                     (December 14, 2017)

        Plaintiffs Wharf, Inc., (“The Wharf”), BRW, Inc. (“Captain White”), and Salt Water

Seafood, Inc. (“Salt Water”) (collectively, the “Plaintiffs”) filed their initial suit on July 23, 2015,

against the District of Columbia (“the District”), Hoffman-Madison Waterfront, LLC (“HMW”)

and Wharf Horizontal Reit Leaseholder, LLC (“WHRL”) (HMW and WHRL are collectively

referred to as the “Initial Developer Defendants”). See generally Compl., ECF No. 1. Plaintiffs

alleged that the Initial Developer Defendants violated the terms of the parties’ lease agreements,

and that the District violated the Takings Clause of the Fifth Amendment by impeding access to

the property leased to Plaintiffs at the Southwest Waterfront of the District of Columbia. Id.

        The Initial Developer Defendants moved to dismiss the Complaint and Plaintiffs thereafter

filed their First Amended Complaint, which all the defendants moved to dismiss. See Initial

Developer Defs.’ Mot. to Dismiss, ECF No. 20; District’s Mot. to Dismiss, ECF No. 25. This

Court denied both motions to dismiss, and the Initial Developer Defendants filed their Answer to

the Plaintiffs’ First Amended Complaint, in which Defendant WHRL also filed a counterclaim

alleging that Plaintiffs breached their lease agreement and were unjustly enriched as a result of


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WHRL’s improvement of the premises. See Memorandum Opinion, ECF No. 45 and Order, ECF

No. 44; Initial Developer Defs.’ Answer and Countercl., ECF No. 54. WHRL filed a subsequent

[74] unopposed motion for joinder to add Wharf Fish Market REIT Leaseholder LLC (“WFMRL”)

as an additional party, which was granted by the Court, with the effect that WFMRL was added as

a Defendant and counterclaim Plaintiff. 1 See Order, ECF No. 75.

       Plaintiffs moved for leave to file a Second Amended Complaint, which was consented to

by the District, unopposed by the other three Defendants, and granted by the Court. See Pls.’ Mot.

for Leave to File Second Am. Compl., ECF No. 80; see also April 26, 2017 Minute Order.

Plaintiffs’ [82] Second Amended Complaint added the following Defendants: Wharf District GP

Joint Venture LLC (“WDGJV”); Wharf Horizontal REIT, LLC (“WHR”); Hoffman-Struever

Waterfront, LLC (“HSW”); and the Wharf District Joint Venture, L.P. (“WDJV”) (collectively,

the “New Developer Defendants”). Subsequently, the New Developer Defendants filed a [92]

Motion to Dismiss the claims asserted against them in the Second Amended Complaint. This

Court held in abeyance the New Developer Defendants’ Motion to Dismiss and allowed the

Plaintiffs to file a Third Amended Complaint. See Memorandum Opinion, ECF No. 103 and

Order, ECF No. 102.

       After Plaintiffs filed the sealed version of their [109] Third Amended Complaint, the New

Developer Defendants filed the instant [114] Motion to Dismiss the Claims Asserted [against



1
 The District was the original lessor of the property at issue. WHRL and the District entered into
a ground lease agreement, dated April 23, 2014, whereby the District leased to WHRL the Fish
Market together with all development rights and entitlements for a 99-year term. On October 31,
2016, WHRL transferred its interest in the ground lease agreement to Wharf Fish Market REIT
Leaseholder LLC. See Def. WHRL’s [74] Unopp. Mot. to Add Countercl. Pl. and Def. at 2.
Wharf Fish Market REIT Leaseholder, LLC (“WFMRL”) is a limited liability company existing
under Delaware law and transacting business in the District as the current landlord of the
Municipal Fish Market tenants. See unsealed Third Amended Complaint, ECF No. 119 (“Third
Am. Compl.”), ¶¶ 26-27.


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them] in the Third Amended Complaint, arguing that Plaintiffs have not asserted facts sufficient

to establish a plausible relationship between the Initial Developer Defendants and the New

Developer Defendants as alter egos or co-conspirators. Upon consideration of the pleadings, 2 the

relevant legal authorities, and the record as a whole, the Court DENIES the New Developer

Defendants’ Motion to Dismiss and lets stand the Plaintiffs’ Third Amended Complaint for the

reasons described herein.


                                        I. BACKGROUND

       This case concerns the Municipal Fish Market located at 1100 Maine Avenue, S.W.,

Washington, D.C. (“Municipal Fish Market” or “the Market”). Third Am. Compl. ¶ 1. Plaintiffs

run three seafood businesses in the Municipal Fish Market and bring this action as lessees of

property located within the Market. Id. ¶ 2. As previously noted, Plaintiffs initially named as

defendants the District, which was the original leaseholder for the properties, and HMW and

WHRL, with WFMRL subsequently added as a defendant by WHRL (these three defendants are

collectively referred to as “Initial Developer Defendants”).           Plaintiffs’ Second Amended

Complaint also added WDGJV, WHR, HSW, and WDJV (collectively, the “New Developer

Defendants”) as additional defendants. See Second Am. Compl. ¶¶ 1, 23-29, 58 (noting that all

the Developer Defendants are “affiliated” entities and further, that “the District assigned Plaintiffs’


2
  The Court has considered the following documents: Plaintiffs’ Second Amended Complaint, ECF
No. 82 (“Second Am. Compl.”); the unsealed version of Plaintiffs’ Third Amended Complaint,
ECF No. 119 (“Third Am. Compl.”) and the exhibits attached thereto; New Developer Defendants’
Motion to Dismiss Plaintiffs’ Third Amended Complaint, ECF No. 114 (“New Devel. Defs.’ Mot.
to Dismiss”); New Developer Defendants’ Memorandum in support of Motion to Dismiss, ECF
No. 114-1 (“New Devel. Defs.’ Mem.”); an unsealed version of Plaintiffs’ Memorandum of Points
and Authorities in Opposition to New Developer Defendants’ Motion to Dismiss Plaintiffs’ Third
Amended Complaint, ECF No. 123 (“Pls.’ Opp’n”); and New Developer Defendants’ Reply
Memorandum in support of Motion to Dismiss, ECF No. 121 (“New Devel. Defs.’ Reply”).
Because this Court relies on the unsealed versions of documents on the Court’s docket, this
Memorandum Opinion need not be filed under seal.


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leases to [the] Developer Defendants, acting through WHRL[,] [which in turn] assigned the leases

to WFMRL.”) The commercial leases at issue are: the agreement entered into by The Wharf and

the District dated July 12, 2000; the agreement entered into by Captain White and the District

dated July 12, 2000; and the agreement originally entered into by Pruitt’s Seafood, Inc. and the

District, and subsequently assumed by Salt Water (then doing business as W.D., Inc.) from DNM

Seafood, Inc. on March 14, 2001, with the consent of then-lessor, the District. Third Am. Compl.

¶¶ 47, 49, 51-52.

       In their Third Amended Complaint, Plaintiffs include three claims against the District,

including two Fifth Amendment Takings Clause claims (Counts I and II) and a violation of

procedural due process claim (Count III). Plaintiffs also raise the following eight claims against

all of the Developer Defendants: declaratory judgment (Count IV); specific performance and

injunctive relief based on breach of lease (Count V); breach of lease (Count VI); breach of

covenant of good faith and fair dealing (Count VII), trespass and conversion (Count VIII);

nuisance (Count IX); tortious interference with prospective business advantage (Count X); and

unjust enrichment (Count XI).

                                     II. LEGAL STANDARD

       Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a

complaint on the grounds it “fail[s] to state a claim upon which relief can be granted.” Fed. R.

Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) is “intended to test the sufficiency of

the complaint.” DSMC, Inc. v. Convera Corp., 273 F. Supp. 2d 14, 23 (D.D.C. 2002). To survive

a Rule 12(b)(6) motion, a complaint must contain sufficient factual allegations that, if accepted as

true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”


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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “[A] complaint [does not] suffice

if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).

        In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must

construe the complaint in the light most favorable to the plaintiff and must accept as true all

reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine

Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994) (citation

omitted). In deciding a Rule 12(b)(6) motion, 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 plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward

v. District of Columbia Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.

2011) (internal quotation marks omitted). The court may also consider documents in the public

record of which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052,

1059 (D.C. Cir. 2007).

                                         III. DISCUSSION

        Before discussing the allegations against the New Developer Defendants that are contained

in Plaintiffs’ Third Amended Complaint, it is perhaps useful to examine the triggering event that

led the Plaintiffs to add these parties as defendants. Plaintiffs assert that “shortly after the parties

commenced discovery in March 2017, Plaintiffs learned of the existence of additional, affiliated

entities associated with the Wharf Project development.” Pls.’ Opp’n. at 2. This occurred after

the Initial Developer Defendants produced to Plaintiffs an organizational chart, which not only

showed that the New Developer Defendants owned and controlled or were owned and controlled

by the Initial Developer Defendants but also that all defendants were “part of a complex,


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interwoven corporate network — all working towards the development, financing, and

construction of the Wharf Project.” Pls.’ Opp’n. at 2-3; see Fish Market Organizational Chart,

ECF No.119-1, Ex. A. The Fish Market Organizational Chart begins with Initial Developer

Defendant HMW, a joint venture and the developer selected for the redevelopment project at issue

in this case, and it ends with the other Initial Developer Defendants — WHRL, a limited liability

company and former landlord of the Plaintiffs, and WFMRL, a limited liability company and

current landlord of the Plaintiffs. Following the Chart from start to finish necessitates movement

through three levels of other organizations, all of whom are affiliated with the Initial Developer

Defendants and involved in some way with the redevelopment project, and who have been named

as New Developer Defendants. 3

       The New Developer Defendants concede that Plaintiffs’ Third Amended Complaint adds

new factual allegations relevant to them, but they argue that while such allegations may

demonstrate overlapping ownership with the Initial Developer Defendants, which encompasses

some common officers, directors, office space and management, this is not enough to support alter

ego or conspiracy claims. Nor do Plaintiffs allege that such entities were “formed to perpetrate a

fraud on them” or is there “any reason to believe that the Original Developer Defendants would

be unable to satisfy any judgment” the Plaintiffs may obtain. New Developer Defs.’ Mem. at 3.

These New Developer Defendants assert therefore that the claims against them should be

dismissed because they are “premised solely upon Plaintiffs’ allegations that [they] are alter egos




3
 Plaintiffs assert that the chart shows that the Municipal Fish Market lease is held by WFMRL,
which is 100% owned by WHR, which is in turn 100% owned by WDJV, which is in turn
majority-owned by HSW, which is majority-owned by HMW, and accordingly, the entities are
all affiliated. See Fish Market Organizational Chart, ECF No. 119-1, Ex. A.


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or co-conspirators” of the Initial Developer Defendants, and Plaintiffs do not plead sufficient facts

to support conspiracy or alter ego claims. New Develop. Defs.’ Mot. to Dismiss at 1-2.

       The crux of the New Developer Defendants’ Motion to Dismiss is a recitation of case law

indicating what type of information/evidence Plaintiffs would be required to provide in order to

state a claim for alter ego (which they maintain Plaintiffs have not done) as well as an argument

that Plaintiffs have not adequately alleged a claim of conspiracy. The New Developer Defendants

seem to focus on a footnote in the Plaintiffs’ Third Amended Complaint, which states that

“[d]iscovery will show whether the Developer Defendant entities conspired to commit [ ] illegal

acts. . . , or whether the[y] are simply one and the same, such that no conspiracy between them

was necessary. For the purpose of this Complaint, and based on the representations by Developer

Defendant to the Plaintiffs, the entities are treated as alter egos.” Third Am. Compl. at 2, n.1. See

also Third Am. Compl. ¶ 32 (alleging that WDGPJV, WHR, HSW and WDJV are alter egos of

WHRL and HMW, and giving examples of the interrelated ownership of the entities, common

management, and sharing of corporate offices, telephone numbers and websites.)

       In their Opposition, Plaintiffs present no counterargument with regard to the New

Developer Defendants’ discussion of alter ego and conspiracy; rather, they begin by clarifying that

the New Developer Defendants are mistaken in their assumption that Plaintiffs are “relying

exclusively upon a corporate veil piercing theory” or that such defendants were named “solely for

satisfaction of judgment purposes.” Pls.’ Opp’n at 4. Plaintiffs assert that while they do

incorporate the term “alter ego” into their Third Amended Complaint a few times, for the purpose

of describing the relationship between defendants, those defendant entities “are part of a complex,

interwoven corporate network in which they each ‘play [ ] a role in advancing some aspect of the

development, financing, construction and, when finished, the operation of the [Wharf] Project.’”




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Pls.’ Opp’n at 4- 5 (citing Third Am. Compl. ¶ 34).4 Plaintiffs urge this Court to “consider [the]

complaint as a whole” in determining whether the allegations therein are sufficient to survive the

pending motion to dismiss. Matthews v District of Columbia, 730 F. Supp. 2d 33, 37 (D.D.C.

2010) (citing Lemmons v Georgetown Univ. Hosp., 431 F. Supp. 2d 76 (D.D.C. 2006)).

       To determine whether a complaint survives a Rule 12(b)(6) motion to dismiss, there is a

“‘two-pronged approach’ under which a court first identifies the factual allegations entitled to an

assumption of truth and then determines ‘whether they plausibly give rise to an entitlement for

relief.’” See Matthews v. District of Columbia, 730 F. Supp. 2d 33, 35 (D.D.C. 2010) (discussing

the two steps set forth in Iqbal, 129 S. Ct. at 1949). In this case, Plaintiffs generally rely on the

Fish Market Organizational Chart, attached as Ex. A to their Third Amended Complaint, and

various factual allegations contained in their Third Amended Complaint to support their assertion

that the Court may “draw a reasonable inference that the authorization necessary for HMW to

direct conduct respecting Plaintiffs’ Leases, . . . , must flow down and through and be approved

by resolutions, delegations, or consents issued by the other entities in the corporate chain, which

actually perform the unauthorized acts, or direct or approve performance of the unauthorized acts

by their subsidiary entities.” See Pls.’ Opp’n at 6; Ex. A; see also Third Am. Compl. ¶¶ 12-17

(containing allegations of wrongdoing by all defendants without distinguishing between them), ¶¶

32-35 (discussing alter egos and the relationship of the defendants in the organizational chart), ¶¶

116-197 (discussing actions taken by all defendant that allegedly breach Plaintiffs’ leases).




44
  Footnote 1 and Paragraph 32 of the Third Amended Complaint are the only references to the
New Developer Defendants being alter egos. In footnote 1 and paragraphs 3 and 4 of the Third
Amended Complaint, Plaintiffs use the term “conspiracy.” See Third Am. Compl., ECF No.
119.


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       Plaintiffs turn next to the exhibits attached to the Third Amended Complaint to demonstrate

that there are sufficient facts to render their claims against the New Developer Defendants

“plausible at the motion to dismiss stage.” Harris v District of Columbia Water and Sewer Auth.,

791 F. 3d 65, 70 (D.C. Cir. 2015). More specifically, Plaintiffs look to the Wharf District Joint

Venture, L.P. Consolidated Financial Statements, ECF No. 119-2, Ex. B, to flesh out the role of

some of the New Developer Defendants in this lawsuit. Ex. B indicates that New Developer

Defendant HSW entered into the Land Disposition Agreement (“LDA”) with the District of

Columbia on May 13, 2009, and assigned those rights to WDJV in 2014 with the effect that WDJV

“through its wholly owned subsidiaries secured the developer rights” to the project. Ex. B at 10.

New Developer Defendant WDJV was “formed to serve as ‘Developer’ under the . . . LDA with

the District of Columbia” with authority that included the “Fish Market redevelopment.” Ex. B at

6. Plaintiffs highlight Paragraphs 186-192 of the Third Amended Complaint, which reference

Plaintiffs’ allegations against the developer defendants for actions that occurred after 2014, and

they conclude that “[f]or the Court to refuse to permit joinder of the actual developer of the project

for the period beginning in April 2014 to the present would be inappropriate given the specific

number of acts alleged to have been undertaken by the developer during this period that were

contrary to the Tenant Leases.” Pls.’ Opp’n at 7 (emphasis in original). In the context of the

pending Rule 12(b)(6) motion, the Court accepts as true the factual allegations in the Plaintiffs’

Third Amended Complaint and shall draw all reasonable inferences from the allegations in the

light most favorable to the plaintiff. Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129

(D.C. Cir. 2015).

       Plaintiffs ask this Court to accept as true several “reasonable factual inferences” derived

from allegations in the Third Amended Complaint and the documents attached thereto. In re




                                                  9
United Mine Workers, 854 F. Supp. at 915. First, Plaintiffs claim that WDJV has operational

authority over the redevelopment of the Fish Market, through its contracts with its subsidiaries,

and it directs contractors doing redevelopment work, which allegedly violates Plaintiffs’ Lease

rights. See Ex. B at 12; Third Am. Compl. ¶ 156 (discussing towing from the parking lot), ¶¶ 183-

185 (discussing security services), ¶¶ 187-194 (discussing the water line, fire alarm and fencing).

Second, Plaintiffs contend that “WHR either actively directs the actions of WFMRL respecting

conduct that violates the Tenant Leases . . ., or approves or has designated to other HSW affiliates

this authority, thus subjecting WHR to direct liability, regardless of alter ego liability.” See Third

Am. Compl. ¶¶ 156, 183-185. Third, Plaintiffs assert that HSW has guaranteed its full and

complete performance of Phase I construction under the LDA, which includes “Fish market

improvements.” See Ex. B at 13. The Court presumes the truth of Plaintiffs’ factual allegations,

and it permits Plaintiffs the benefit of every “favorable inference that may be drawn from the

allegations of fact.” In re Interbank Funding Corp. Sec. Litig., 668 F. Supp. 2d 44, 47-48 (D.D.C.

2009) (citations omitted).

       “A court’s evaluation of a complaint to determine whether it states a plausible claim for

relief is ‘a context-specific task that requires the reviewing court to draw on its judicial experience

and common sense.’” Badwal v. Bd. of Trustees of Univ. of the District of Columbia. 139 F. Supp.

3d 295, 307 (D.D.C. 2015) (quoting Iqbal, 556 U.S. at 679). In this case, the New Developer

Defendants argue that all of Plaintiffs’ claims against them are based on the interrelationship of

the defendants and their status as alter egos, and as such, Plaintiffs have been unable to establish

that these defendants are “bad actors, standing alone” who have committed wrongs against the

Plaintiffs so as to withstand a motion to dismiss for failure to state a claim. Defs.’ Reply at 5.

Plaintiffs’ have however propounded factual allegations from their Third Amended Complaint and




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the documents attached thereto in support of their claims against the New Developer Defendants,

which do not rely on a theory of alter ego, and they have asked this Court to draw reasonable

inferences therefrom. Applying the two-pronged approach in Matthews, supra., as set forth in

Iqbal, supra., this Court finds that Plaintiffs’ Third Amended Complaint sufficiently states a claim

against the New Developer Defendants and accordingly, the Court shall DENY the New Developer

Defendants’ Motion to Dismiss.

                                       IV. CONCLUSION

       For the foregoing reasons, the Court DENIES the New Developer Defendants’ Motion to

Dismiss. A separate Order accompanies this Memorandum Opinion.




                                                                         /s/
                                                             COLLEEN KOLLAR-KOTELLY
                                                             United States District Judge




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