UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

___________________________________ ) FIBERLIGHT, LLC, ) ) Plaintiff/Counter-Defendant, ) ) v. ) Civil Action N o. 16-2248 (ESH) ) WASHINGTON METROPOLITAN ) AREA TRANSIT AUTHORITY, ) ) Defendant/Counter-Plaintiff. ) ___________________________________ )

MEMORANDUM OPINION In 2006, FiberLight, LLC, and the W ashington Metropolitan AreaTransit Authority (“WMATA”) entered into a cont ract pursuant to which, inter alia , FiberLight agreed to pay WMATA on an annual basis for th e right to install and operate i ts fiber optic cable and associated equipment inside WMATA ’s Metrorail System (the “Lice nse Agreement”). FiberLight now believes that WMA TA leased rights that it did no t possess and has sued for breach of contract, declaratory judgment and breach of the impl ied covenant of good faith and fair dealing ( see First Am. Compl., ECF No. 13 (“Am . Compl.”); WMATA has filed counterclaims for breach of cont ract and unjust enrichment ( see WMATA’s Amended Answer to the First Am. Compl. & Amended C ounterclaims, ECF No. 15 (“Am. Ans. & Counterclaims”). Before the Court is WMATA’s motion to dismiss FiberLight’s firs t amended complaint. ( See WMATA’s Mot. to Dismiss, ECF N o. 16. (“Mot.”).) For the reason s stated herein, the motion will be denied.2 BACKGROUND
I. FACTUAL BACKGROUND 1 FiberLight is a company that “constructs, owns, and operates f iber optic facilities for sale or lease to government and commerc ial carrier customers in the Washington, D.C. metropolitan area.” (Am. Compl. ¶ 1.) O n September 16, 2005, the Public Se rvice Commission of the District of Columbia granted Fib erLight’s application “to provi de resold and facilities-based local exchange telecommunication services in the District of Co lumbia.” 2 See Order No. 13761, Application of FiberLight, LLC t o Provide Local Telecommunicati ons Services in the District of Columbia, Formal Case No. TA 05-9 (Sept. 16, 2005); ( see also Am. Compl. ¶ 2). Under District of Columbia law, “‘[a] ny telecommunications provider i n the District shall have the right to utilize the public right-of-wa ys of the District for install ation, maintenance, repair, replacement, and operation of its t elecommunications system . . . .’” (Am. Compl. ¶ 5 (quoting D.C. Code § 34-2004(a)). WMATA is a regional transporta tion authority and the operator of a “public mass transit rail system in the Washington, D.C. metropolitan area” (the “WM ATA System”). ( See Am. Compl. ¶ 9 & Ex. 1 (“License Agree ment”), at 1.) It is “the pr oduct of an interstate compact entered into by Maryland, Virginia and the District of Columbia ” (the “WMATA Compact”). KiSKA Const. Corp. v. Washington Metro. Area Transit Auth. , 321 F.3d 1151, 1158 (D.C. Cir. 2003).

1 As the Court is ruling on a mo tion to dismiss, the facts set f orth herein are taken from the allegations of the amended compl aint and the exhibits thereto.
2 FiberLight is also authorize d to operate in Maryland and Virgi nia ( see Am. Compl. ¶¶ 3-4), but this case concerns only its opera tions in the District of Colum bia.3 On or about October 23, 2006, Fiber Light and WMATA entered int o the “License Agreement” that underlies this lawsuit. (Am. Compl. ¶ 10.) Inrelevant part, the License Agreement provides that WMATA, in exchange for an annual licens e fee, will allow FiberLight to install and operate telecommunications facilities within the WMATA System’s “surface transportation corridors and unde rgrounds tunnels” (the “WMATA ROW” or “WMATA Rightof-Way”). (License Agreement , at 1, art. 10, & Schedule 1 ther eto; see also Am. Compl. ¶¶ 10, 21, 24, 26.) The License Agreement includes an affirmative rep resentation by WMATA that “it has the power and authority . . . to lease conduit rights in t he WMATA ROW to FIBERLIGHT for the operation and maintenance of the FiberLight System . . . .” (License Agreement, art. 14.1.) Until 2014, FiberLight accepted the Article 14.1 representatio n as true, assuming that WMATA “would not attempt to license real or personal property r ights that it did not possess.” (Am. Compl. ¶ 28.) At some poi nt during 2014, though, FiberLig ht “observed that much of the WMATA network lay directly bene ath the public rights-of-way, anarea that FiberLight already had the right to occupy as a cer tificated public utility.” (Am . Compl. ¶ 27.) “The realization that the WMATA network lay directly b eneath the public rights-of-way led FiberLight to inquire whether WMATA had some form of independent ownership of such re al property beneath the public rights-of-way.” (Am. Com pl. ¶ 28.) This realization le d FiberLight to raise the issue with WMATA, in a letter date d August 22, 2014. (Am. Compl. ¶ 22.) In that letter, a fter stating that it was “currently expanding [its] fiber network in the DC area and seek[ing] to clearly understand the nature of the license contemplated under the [License] Agre ement,” FiberLight asked WMATA to respond to “several ques tions regarding the [License] Agreement”: 1. Regarding Section 14.1 of the Agr eement in which WMATA repr esents it has the power and authority to ‘own and operate the WMATA System, and to lease4 conduit right in the WMATA RO W [right-of-way] to FIBERLIGHT for the operation and maintenance of the FIBERLIGHT System . . .’, will you please inform us of the source and nature of that authority?” 2. What is the nature of the WMATA ROW? From whom is it grant ed and is it exclusive in nature? 3. Where the WMATA ROW inters ects or runs parallel to the publ ic ROW, which ROW holder has precedence? 4. Will WMATA provide us a copy of the DC Mayor’s permit for s ections of the WMATA ROW that lie[] within the public ROW which we believe is required under D.C. Code Ann. § 10-1141.03.? If WMATA believes that it is not subject to this Code section, please provide an explanation? 5. Does the license contemplate d in the Agreement cover use of real property (i.e. use of WMATA’s ROW) or personal property? (Am. Compl., Ex. 2, at 1-2 (quoting License Agreement, art. 14. 1) (emphasis in original).) WMATA response came in a letter dated January 22, 2015. (Am. Compl., Ex. 3.) It identified the WMATA Compact as the source of its authority to own and operate the WMATA System, and the November 20, 1969 “Ma ster Agreement with the Di strict of Columbia” as the source of “the terms and conditi ons associated with the constru ction of the Metrorail System on D.C. government property.” (Am. Compl., Ex. 3, at 1-3.) WMATA ’s letter attached a copy of the 1967 WMATA Compact, but notthe 1969 Master Agreement. ( See Am. Compl., Ex. 3, at 3.) The letter described “WMATA’ s Right of Way” as “private pr operty used for a public purpose,” adding that “[a]ny particular parcel of WMATA property may be held as fee simple property, permanent or temporary easement, or as some less-than -fee estate.” (Am. Compl., Ex. 3, at 1-2.) However, WMATA “neve r produced or identified any s uch land record, deed or title.” (Am. Compl. ¶ 35.) FiberLight found WMATA’s re sponse to be unsatisfactory ( see Am. Compl. ¶ 30 (“WMATA could not provide a straightforward answer”) and ultima tely “concluded that that5 representation by WMATA in A rticle 14.1 . . . ‘was untrue in a material respect.’” (Am. Compl. ¶¶ 30, 38-39 (quoting License Agr eement, art. 21.1).) Presumab ly based on this conclusion, FiberLight did not pay WMAT A’s 2014 or 2015 annual invoices. On August 24, 2016, WMATA sent Fiber Light a letter as a “notic e of failure of Licensee to make payment” and stating that it “expect[ed] payment of the outstanding amount of $789,213.90 plus interest in full, a nd within 15 business days. ” (Am. Compl., Ex. 4, at 1.) WMATA further advised FiberLigh t that “if payment is not receiv ed within this time period, [FiberLight] will be in default of [its] obligations in accorda nce with Article 20 [of the License Agreement]” and, if that happened, WMATA “may exercise one or m ore of the [r]emedies provided pursuant to Article 21 [of the License Agreement], whi ch include, but are not limited to, termination of the License.” 3 (Am. Compl., Ex. 4, at 1-2.). Article 21.1 of the License Agreement provides that: Upon the occurrence and during the continuance of any event of default , the nondefaulting party may, at its opti on, declare this License Agree ment to be in default and may, in addition to any other remedies provided herein, ter minate this License Agreement. No remedy is intended to be exclusive, but each sha ll be cumulative and in addition to and may be exerc ised concurrently with any o ther remedy available to WMATA or FIBER LIGHT at law or in equity. (License Agreement, art. 21.1 (em phasis added).) However, it a lso provides that: In addition to all other remedies contained herein, WMATA and F IBERLIGHT agree that if any representation made in this License Agreement is untrue in any material respect when made and the non-de faulting party elects not to terminate this License Agreement, the parties sh all negotiate in good faith an equitable adjustment to the payment terms with the intention of reasonably compensating the other party for any damages it may have sustained as a resu lt of such representation being untrue when made.

3 Article 20 of the License Agreemen t provides that “an event of default” includes “the failure of either party to perform or observe any material covenant to be performed or observed by it pursuant to the License Agreemen t.” (License Agreement, art. 2 0.1(c).)6 (License Agreement, art. 21.1 (em phasis added).) In addition, Article 27.4 of the License Agreement provides that “the parties shall negotiate in good faith to resolve [any] claim or dispute or, upon the failure to resolve such claim or dispute through good faith negotiations, the parties may attempt to resolve such claim or dispute through al ternative dispute resolution (ADR) techniques.” (License Agreement, art. 27.4 (emphasis add ed).) FiberLight did not make the payments WMATA demanded, but on Au gust 30, 2016, it “requested good faith negotiations with WMATA.” (Am. Compl. ¶ 63.) On September 14, 2016, FiberLight and WMATA met. ( Am. Compl. ¶ 64.) At that me eting, FiberLight “again requested good faith negotiations,” while WMATA “advised it wou ld provide FiberLight written evidence to substantiate its Article 14.1 rep resentations.” (A m. Compl. ¶ 64.) WMATA “never provide[d] the written response it committed to p rovide and never provided any evidence that subs tantiate[d] its Article 14.1 rep resentations.” ( Am. Compl. § 65.) “Instead, on October 14, 2016, WMATA warned FiberLight that within fifteen (15) days, it would advise FiberLight of WMATA ’s election to accept ownership of the FiberLight System, or have it removed.” (Am. Compl. ¶ 66.) On October 25, 2016, “pursuant to Article 27.4 of the License Agreement, . . . FiberLight recommended to WMATA that the parties engage in mediation as a form of voluntary dispute resolution to resolve this dispute,” but it also “advised WMATAthat, pursuant to Article 27.5 of the License Agreement, it was pr oviding notice that it could in voke its right to litigation to resolve this dispute.” 4 (Am. Compl. ¶¶ 66-67.)

4 Article 27.5 states: “If any c laim or dispute arising hereunde r is not resolved in accordance with the provisions of this Artic le, either party may, upon giving the other party at least ten (10) calendar days prior written notic e, initiate litigation to subm it such claim or dispute for decision in the United States District C ourt for the District of Columbi a . . . .” (License Agreement, art. 27.5.)7 By letter dated November 2, 2016, WMATA declined the offer to engage in mediation. ( See Am. Compl., Ex. 5.) WMATA’s lette r stated that it “ha[d] enga ged in good faith negotiations with FiberLight for nearly two years,” but that th e “parties’ positions remain unchanged” and “[p]rolonged negotia tions, or even mediation, se rve only to allow FiberLight to continue to engage in contractu ally prohibited self-help.” (Am . Compl., Ex. 5.) WMATA’s letter also stated that “(i) the [License] Agreement was termin ated; and (ii) unless FiberLight immediately pays the amounts past due, including applicable int erest, in full, WMATA intends to initiate litigati on within ten (10) days from the date of th is letter to enforce its right to payment under the [License] Agreement.” Finally, WMATA’s letter asked FiberLight to provide WMATA with FiberLight’s “propos ed plan for orderly termination pursuant to Article 23 of the [License] Agreement.” 5 (Am. Compl., Ex. 5, at 1-2.) On December 6, 2016, FiberLight sent WMATA a letter asking it to “confirm that FiberLight will continue to have unimpeded access to the . . . WMATA System” for the purpose of installing new fiber. ( See Am. Compl., Ex. 6, at 1.) WMATA responded, in a letter dated December 16, 2016, that FiberLight’s request was “surprising” g iven that WMATA had “terminated” the License Agreem ent and that, as a result and byoperation of Article 2.4 of the License Agreement, the FiberLigh t System had become WMATA’s pro perty. (Am. Compl., Ex. 6, at 1 (quoting License Agreem ent, art. 2.4 (“[U]pon terminati on of this License Agreement . . . the FiberLight System shall, a t the sole and unfettered discret ion of WMATA, . . . become the property of WMATA.”).)

5 Article 23.1 states: “Upon expi ration or earlier termination of this License Agreement, WMATA and FIBERLIGHT agree t o cooperate with each other in good faith to achieve an orderly termination.” (Li cense Agreement, art. 23.1.)8 II. PROCEDURAL HISTORY On November 11, 2016, before the last exchange of letters, Fib erLight initiated litigation. ( See Compl., ECF No. 1.) It filed a n amended complaint on December 28, 2016, which includes three counts. Count I is a clai m for breach of contract, whichclaims that: (1) “WMATA is in material breach of the License A greement because it has made a materially untrue representation under Article 14.1 that it has the right ‘to lease conduit righ ts in the WMATA ROW to FIBERLIGHT for the operation and m aintenance of the FiberLight System . . .’ and refused to provide any evidence supporting its power and authority to leas e FiberLight rights in the WMATA ROW” (Am. Compl. ¶ 82 (quo ting License Agreement, art. 14 .1)); and (2) “WMATA breached Articles 21.1 and 27.4 of the License Agreement when i t failed to negotiate in good faith an equitable adjustment to the payment terms of the Licen se Agreement after it was advised of its materially untrue sta tement.” (Am. Compl. ¶ 83.) Count II seeks a declaratory judgment that: (1) WMATA is in breach of the Lic ense Agreement and FiberLight is not; (2) WMATA cannot charge FiberLightan annual license fee under the License Agreement for placing the Fiber Light System in the public right s-of-way; (3) WMATA must continue t o provide FiberLight access to the FiberLi ght System as required pursuant to, inter alia , Article 11 of the License Agreement; (4) FiberLight has independent auth ority to place, operate and expa nd its network in the public rights-of-way; (5) WMATA’s purported termination of the License Agreement was invalid; and, (6) W MATA has not taken and cannot take ownership and possession of the Fib erLight System, interrupt li ve traffic on the FiberLight Network, or remove it from the WMATA System. (Am. Comp. ¶ 92.) Count III claim s that WMATA breached the “im plied covenant of good faith and fair dealing” when it a. Committed, in a meeting on September 14, 2016, to provide a detailed explanation of its legal author ity and property rights but fail ed to do so; b. Did not follow the detailed di spute resolution provisions, i ncluding but not limited to the preference for medi ation or other alternative di spute resolution, of Article 27 in t he License Agreement;9 c. Requested, pursuant to Ar ticle 2.4 of the License Agreement, that FiberLight provide a plan to rem ove its fiber. Under Article 2 .4, FiberLight would have six months to remove its fiber. FiberLig ht responded that “it will need addi tional time to resolve this di spute and, if necessary, provide for orderly termination.” WMATA, claiming that FiberLight had not responded when it in fact did, then refused to continue negotiating in good faith as requi red by Article 23 of the Lice nse Agreement and claimed a right to ownership of FiberLight’s fibe r, despite the fact that WMATA has no suc h right under the contract and, u pon information and belief, has no feder al, state or local authorit y to operate the FiberLight network[; and] d. Refused to propose or even disc uss any other rate for the License Agreement as required by Article 21, aside from that originallystated that at the time would have been base d on WMATA’s assertion of clear title to the underlying property rights, a n assertion which it cannot no w support. (Am. Compl. ¶ 97.) On January 13, 2017, WMATA filed (1) its answer to the amended complaint, denying any misrepresentation; (2) count erclaims for breach of contract and unjust enrichment; 6 and (3) the instant motion to dismiss. F iberLight filed its oppositionon February 3, 2017 ( see FiberLight’s Opp’n to Mot. to D ismiss, ECF No. 18 (“Opp’n”)), a nd WMATA filed its reply on February 17, 2017 ( see WMATA’s Reply in Support of M ot. to Dismiss, ECF No. 19 (“Repl y”)).
DISCUSSION WMATA has moved to dismiss Fibe rLight’s amended complaint for lack of jurisdiction,

see Fed. R. Civ. P. 12(b)(1), failure to state a claim upon which relief can be granted, see Fed. R. Civ. P. 12(b)(6), and failure to s atisfy the heightened pleadin g requirements for a fraud claim,

see Fed. R. Civ. P. 9(b).

6 WMATA’s counterclaims are ba sed upon FiberLight’s failure to p ay WMATA’s annual invoices from 2014 to the present, f ailure to provide WMATA wit h an orderly termination plan, and continued use of the fiber opt ic network without paying com pensation. ( See Ans. & Counterclaims at 18-20.)10 I. SUBJECT MATTER JURISDICTION WMATA argues that FiberLight’s claims should be dismissed purs uant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction because they a re precluded by the doctrine of sovereign immunity. To survive a motion to dismiss pursuant to Rule 12(b)(1), plaintiff bears the burden of establishing that the court has subject matter ju risdiction over its claim. See Moms Against Mercury v. Food & Drug Admin. , 483 F.3d 824, 828 (D.C. Cir. 2007). In determining whether there is jurisdiction, “ the district court may consider materials outside the pleadings.” Jerome Stevens Pharm., Inc. v. Food & Drug Admin ., 402 F.3d 1249, 1253–54 (D.C. Cir. 2005). In addition, “[a]lthough a court must accept as true all factua l allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 1 2(b)(1),” the factual allegations in the complaint “will bear clo ser scrutiny in resolving a 12(b )(1) motion than in resolving a 12(b)(6) motion for failu re to state a claim.” Wright v. Foreign Serv. Grievance Bd. , 503 F. Supp. 2d 163, 170 (D.D.C. 2007).
A. WMATA’s Sovereign Immunity “In signing the WMATA Compact, M aryland, Virginia, and the Dis trict of Columbia conferred upon WMATA their resp ective sovereign immunities.” Beebe v. Washington Metro.
Area Transit Auth ., 129 F.3d 1283, 1287 (D.C. Cir. 1997). Thus, unless WMATA’s sovereign immunity has been waived, a dist rict court lack s jurisdiction t o enter a judgment against it. See Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1216 (D. C. Cir.1997); Watters v. Washington Metro. Area Transit Auth. , 295 F.3d 36, 39–40 (D.C. Cir. 2002). Section 80 of the WMATA Compact “waives WMATA’s sovereign immunity for contractual disputes” and “for torts ‘committed in the conduct of any proprietary fun ction,’” while retaining immunity11 for torts committed by its agents ‘in the performance of a gove rnmental function.’” 7 Beebe , 129 F.3d at 1287, 1290 (quoting D.C. Code Ann. § 9-1107.01); see also Martin v. Washington Metro.
Area Transit Auth. , 273 F. Supp. 2d 114, 119 (D.D.C. 2003) (“WMATA’s defense of s overeign immunity is inapplicable to [plai ntiff’s] claims for breach of contract and breach of the implied duty of good faith and fair deali ng, these claims being based o n an alleged contract under which WMATA agreed to follow its publ ished hiring procedures.”); KiSKA Const. Corp. , 321 F.3d at 1160 (“[S]ection 80 distinguishes bet ween tort claims and contr act claims, affording a limited waiver of sovereign immunity withrespect to the former and a c omplete waiver of sovereign immunity with respect to the la tter”). “To determine whether a tort was committed in the performance of a government func tion, courts ask whether the ac tivity amounts to a ‘quintessential’ governmental func tion, like law enforcement.” Beebe , 129 F.3d at 1287. “If so, the activity falls within the scope of WMATA’s sovereign immuni ty.” Id. In most situations though, “it is difficult to disti nguish betwee n public and priv ate sector functions with any precision,” so courts ask whether t he activity is “discretionar y” or “ministerial.” Id

. Discretionary functions are shi elded by sovereign immunity; min isterial functions are not. Id

.

7 Section 80 of the WMATA C ompact provides that: The Authority shall be liable fo r its contracts and for its tor ts and those of its Directors, officers, employees and agent committed in the condu ct of any proprietary function, in accordance with the law of the applica ble signatory (including rules on conflict of law s), but shall not be liable for any torts occurring in the performance of a governme ntal function. The exclusive re medy for such breach of contracts and torts fo r which the Authority shall be liable, as herein provided, shall be by suit again st the Authority. Nothing conta ined in this Title shall be construed as a waiver by the District of Columbia, Mar yland, Virginia and the counties and cities with in the Zone of any immunity fro m suit. D.C. Code Ann. § 9-1107.01.12 B. Discretionary Actions (Counts I-III) WMATA first argues that sovere ign immunity protects it from Fi berLight’s claims because “any actions taken by WMATA related to the complaint we re discretionary.” (Mot. at 8.) The problem with WMATA’s ar gument is that the discretionar y/ministerial distinction is only relevant when deciding if WMAT A is immune from a particular tort claim. FiberLight is insistent that it is not bringing any tort claims. ( See Opp’n at 15 (“WMATA’s Motion to Dismiss expends a great deal of effort to recast FiberLight’s claims as tort claims, despite the fact that they unquestionably sound in cont ract and demand money damages for a breach of contract.”) It is well-established that it is a plaintiff’s pr erogative to sel ect the claims it wishes to bring; thus, WMATA may not simply recharacteri ze a contract-based claim as atort claim and then assert sovereign immunity. See, e.g., Vakassian v. Washington Metro. Area Transit Auth. , No. 05-cv0741, 2005 WL 3434794, at *3 (D.D.C. D ec. 14, 2005) (“[T]he la w allows plaintiffs to be the “masters of their cases”; so long a s a claim is properly colora ble under the law, the plaintiff may choose to pursue it, even though t he defendant may believe that a different legal avenue is more appropriate. Defendant may not, a t its whim, convert plaintiff ’s breach of contract claim into a claim that sounds in tort, and the n assert that sovereign immun ity precludes that tort claim.”) Accordingly, WMATA’s “discreti onary actions” argument is withou t merit.
C. Equitable Remedies (Counts I-III) WMATA next argues that even thoug h the WMATA Compact “expressl y waives WMATA’s sovereign immunity wit h respect to liability arising ou t of its contracts,” the waiver does not apply here because Fibe rLight is essentially seeking r eformation of the License Agreement -- an “equitable or quasi-contractual remedy.” (Mot. at 11-12.) Thus, WMATA argues, FiberLight is “bringing asuit in equity” as to which t here is no waiver of sovereign immunity.13 Applying the principle that a w aiver of sovereign immunity mus t be clear and unequivocal, courts have held that WMATA is immune from certainequitable claims. See, e.g ., Watters , 295 F.3d at 41 (immunity not wai ved for claim of “breach of d uty to enforce an attorney’s lien”); In re Fort Totten Metrorail Cases Ar ising Out of Events of June 22, 2009 , 895 F. Supp. 2d 48, 67 (D.D.C. 2012) (“WMATA has not waived its sov ereign immunity as to equitable indemnification claims”); Martin v. WMATA , 273 F. Supp. 2d at 118 n.7 (“WMATA is immune from [plaintiff’s] promi ssory estoppel claim.”). Howeve r, WMATA has not cited any case, and the Court has found none , that holds that despite the express waiver of immunity in Section 80 for contract claims, WMATA is immune from a contract claim simply because it seeks “equitable” remedies in addition to damages. Moreover, e ven if Section 80 does not generally waive WMATA’s sovereig n immunity as to an equitable r emedy for a breach of contract claim, WMATA has contra ctually waived its immunity in the License Agreement as it expressly allows for “equitable adjustment to the payment terms ” and provides that any dispute is to be resolved by litigation i n federal district court. ( See License Agreement, arts. 21.1, 27.5.); see, e.g., Gen. Ry. Signal Co. v. Washington Metro. Area Transit Auth ., 625 F. Supp. 22, 24 (D.D.C. 1985) (“Waiver occurre d here by virtue of the ‘equitabl e adjustment’ language in the ‘Changes’ clause of the contract.”), aff’d , 875 F.2d 320 (D.C. Cir. 1989). Accordingly, WMATA is not immune from FiberLi ght’s claims simply because the y seek “equitable remedies.”
D. Declaratory Judgment (Count II) WMATA final immunity argument is that even if Counts I and III can proceed, Count II should be dismissed because WMATA has not expressly waived its immunity as to declaratory judgments. The Declaratory Judgmen t Act, though, merely provid es an additional remedy where the federal court already has jurisdiction . See Clayton v. District of Columbia , 931 F. Supp. 2d14 192, 201 (D.D.C. 2013). Here, the Cour t has concluded that it has jurisdiction ove r FiberLight’s breach of contract and breach of the duty of good faith and fai r dealing claims, so it also has jurisdiction over a declaratory judgment claim based on the sam e allegations. Accordingly, the lack of an express waiver for adeclaratory judgment action doe s not protect WMATA from FiberLight’s declaratory judgment claim.
* * * Having concluded that WMATA’s sovereign immunity does not bar FiberLight’s claims, the Court will not dismiss the complaint for lack of jurisdicti on and will proceed to consider WMATA’s other argumen ts for dismissal.
II. FAILURE TO STATE A CLAIM WMATA next argues that FiberLight’s claims should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim because (1) the c laims are barred by the three-year statute of limitations; (2) the complaint fails to adequately a llege the essential elements of each claim; or (3) the complai nt fails to satisfy the Twombly/Iqbalpleading standard. “In ruling on a motion to dismi ss for failure to state a claim , the court must ‘accept as true all of the factual allegati ons contained in the complaint, ’” Phillips v. Fulwood , 616 F.3d 577, 581 (D.C. Cir. 2010) (quoting Erickson v. Pardus , 551 U.S. 89, 94 (2007)), and “construe the complaint in favor of the plain tiff, who must be granted the be nefit of all inferences that can be derived from the f acts alleged.” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks omitted). However, the court will “n ot accept inferences drawn by [the] plaintiff if those infe rences are not supported by the fa cts set out in the complaint, nor must the court accept legal conclusi ons cast as factual allegations. ” Id. (citations omitted).15 A. Statute of Limitations A defendant is entitled to succeed on a Rule 12(b)(6) motion t o dismiss brought on statute of limitations grounds onl y “when the facts that give r ise to the [affirmative] defense are clear from the face of the compl aint” and the claim is “conclus ively time barred.” Smith–Haynie v. District of Columbia , 155 F.3d 575, 578 (D.C. Cir.1998); see Bregman v. Perles , 747 F.3d 873, 875 (D.C. Cir. 2014). WMATA argues that each of FiberLigh t’s claims is barred by the three-year statute of limitations that applies t o contract clai ms in the District of Columbia. (Mot. at 5 (citing D.C. Code Ann. § 12-301(7 )). WMATA argues that Co unt I is barred because the alleged misrepresentation in Art icle 14.1 “was made at the time of the execution of the Agreement, thereby giving ris e at that time – 2006 – to a putat ive claim for breach [of contract],” and that Counts II and III are al so time-barred because they re st on the “same misrepresentation” asserted in Count I. 8 (Mot. at 5, 7.) FiberLight agr ees that the applicable statut e of limitations is three years, but othe rwise disagrees with WMATA’s analysis.
1. Count I “Under D.C. Code § 12–301(7), in ord er to maintain a cause of action on a simple contract, express or implied, alawsuit must be brought within three years following the accrual of the claim.” Ehrenhaft v. Malcolm Price, Inc. , 483 A.2d 1192, 1198 (D.C. 1984). Although “[t]he term ‘accrual’ is leftundefined by the statute and is t hus left to jud icial interpre tation,” it is “well-settled” by District of Col umbia courts that a breach of contract claim generally “accrues”

8 WMATA’s argument ignores tha t part of Count I is based on alle ged breaches of Articles 21.1 and 27.4 of the License Agreement and that those alleged breach es are based on WMATA’s actions in 2014. ( See Am. Compl. ¶ 83 (“WMATA breach ed Articles 21.1 and 27.4 of the License Agreement when it fail ed to negotiate in good faith an equitable adjustment to the payment terms of the License Agr eement after it was advised of its materially untrue statement.”).) Presumably, though, its position is that this p art of Count I, like Counts II and III, is barred because it depends on proof of the “same misrepresent ation.”16 when a contract is “first breached.” Id . at 1198-99; see also Capitol Place I Assocs. L.P. v. George Hyman Const. Co ., 673 A.2d 194, 198 (D.C. 1996); Western Union Tel. Co. v. Massman
Const. Co ., 402 A.2d 1275, 1277 (D.C. 1979). Despite this general rule, Fiberlight argues, relying on the “discovery rule,” that its breach of contract cl aim based on the alleged misrepresentation in Artic le 14.1 did not accrue in 2006, when the License Agreement was entered into, but rather accrue d in 2014, when it “first discov ered” the misrepresentation. (Opp’n at 7.) “Under the discovery rule, a cause of action accrues for limit ations purposes ‘when the plaintiff has either actual notice of her cause of action or is deemed to be on inquiry notice because if she had met her duty to act reasonably under the cir cumstances in investigating matters affecting her affairs, s uch an investigation, if conduc ted, would have led to actual notice.’” Harris v. Ladner , 828 A.2d 203, 205–06 (D.C. 2003) (emphasis added) (quoting
Diamond v. Davis , 680 A.2d 364, 372 (D.C. 1996 )); see also Capitol Place I Assocs. L.P. v. George Hyman Const. Co ., 673 A.2d 194, 198–99 (D.C. 1996) (”accrua l occurs pursuant t o the discovery exception when a party kn ows or by the exercise of re asonable diligence should know: (1) of the injury; ( 2) the injury’s cause in fact; and (3) of s ome evidence of wrongdoing”). Here, the amended complaint alle ges that FiberLight had actual notice in 2014, within the three-year statute of limitations period. ( See Am. Compl. ¶ 34 (“WMATA’s materially untrue representation in Article 14.1 of t he License Agreement was not discovered by FiberLight until 2014”); see also Am. Compl. ¶ 27 (“In 2014, FiberLightfirst discovered that WM ATA appeared not to have ‘the power and aut hority . . . to lease conduit rig hts in the WMATA ROW’ to FiberLight”). The amended complai nt further alleges that Fiber Light should not be deemed to have been on inquiry notice any ear lier than when it had actual notice as FiberLight “reasonably17 relied upon the representati on by WMATA, reasonably assuming th at it would not attempt to license real or personal property rights that it did not posses s.” (Am. Compl. ¶ 28; see also Am. Compl. ¶ 36 (“[I]f WMATA itsel f cannot plainly and readily stat e its ownership interest, it cannot charge FiberLight for suc h interest or claim that such i nterest was readily discoverable by FiberLight.”).) Despite these allegations, WMAT A argues that “the discovery ru le is inapplicable because FiberLight had the ability to discover the alleged misr epresentation at the time of contract formation.” 9 (Reply at 2.) Essentially, WMATA’s position is that FiberLig ht’s allegation that it reasonably re lied on WMATA’s affirmative rep resentation in Article 14.1 should be rejected as a matter of law and that it should be dee med to have been on inquiry notice

9 WMATA also suggests more broadl y that under District of Columb ia law the discovery rule can never be applied to a breach of contract claim unless it is intertwined with a tort claim. ( See Reply at 3-4.) This is not the current law in the District of Columbia. In making this argument, WMATA cites to the D.C. Cour t of Appeals’ decision in Ehrenhaft , which held that the “discovery rule” applies to “an action based upon tort and contract claims arising out of allegedly deficient design and constructi on of an addition to a house.” 483 A.2d at 1203. Although in reaching this conclusion the court in Ehrenhaft expressly declined to hold that the discovery rule applies in allcases, it did not rule out the pos sibility that it could apply to a contract claim that was not intertwined with a tort claim. Id . at 1204. Rather, it “decide d only the instant case, leaving to the future the applic ation of the [discovery] rule b y analogy to the facts.” Id . In subsequent cases, courts have ge nerally considered the particul ar facts of a case before deciding whether the discovery rule appl ies to a breach of contract clai m and, if so, whether its requirements have been satisfied. See, e.g ., Harris , 828 A.2d at 205-06 (applying discovery rule, but finding that the plaintiff c ould not satisfy its requiremen ts); Sea Search Armada v. Republic of Colombia , 821 F. Supp. 2d 268, 272 (D.D.C. 2011) (same), aff’d , 522 F. App’x 1 (D.C. Cir. 2013); Estate of Grant v. Armour Pharm. Co. , No. 04-cv-1680, 2007 WL 172316, at *3 (D.D.C. Jan. 23, 2007) (same); Hensel Phelps Constr. Co. v. Cooper Carry, Inc ., 210 F. Supp. 3d 192, 197 (D.D.C. 2016) (noting potential a vailability of discovery r ule for a breach of contract claim “if there is a lag between the moment of breach and the time wh en the plaintiff discovers the breach”); James v. Miche Bag Corp. , 967 F. Supp. 2d 365, 369 (D.D.C. 2013) (noting that discovery rule could not save pl aintiff’s breach of contract cl aim where plaintiff had actual knowledge of the breach at the time it occurred), aff’d sub nom. James v. Miche Bag, LLC , No. 13-7193, 2014 WL 2178735 (D.C. Cir. Apr. 18, 2014); C.B. Harris & Co., Inc. v. Wells Fargo & Co. , 113 F. Supp. 3d 166, 170–72 (D.D.C. 2015) (rejecting applicat ion of discovery rule to particular breach of contract c laim based on underlying facts).18 of its breach of contract claim f rom the date the License Agree ment took effect. FiberLight argues that it has adequately a lleged a factual basis for its r eliance, asking the Court to consider (1) “that WMATA, a multi-billi on dollar entity spanning three s overeign jurisdictions, represented a property interest in its tunnels and it was reaso nable for FiberLight to rely on this representation, since WMATA’s metr o trains traverse the tunnels and WMATA maintains the tunnels”; (2) “FiberLight’s natural proclivity to accept the wo rd of a government entity that it had a right to lease the real prop erty that it was contracting to lease”; (3) that “it was in fact reasonable for FiberLight to not conduct an exhaustive investig ation, particularly where, as here, WMATA was willing to provide an explicit contractual remedy in the event any of its material representations proved untrue”; and (4) that “other carriers mu ch larger than FiberLight likewise entered into similar contracts on the eminently reasonable assumption that a government entity would not attempt to lease prope rty that it does not own.” (Op p’n at 9.) It is certainly possible that W MATA’s position will prevail in the end, if FiberLight is not able to satisfy the requirement s for application of the discove ry rule. See, e.g ., East v. Graphic Arts Industry Joint Pension Trust , 718 A.2d 153, 157 (D.C. 1998) (“The di scovery rule does not apply to circumstances . . . where the plaintiff has failed to discover the relevant law even though the existence of an injury is apparent.”); see also Tolbert v. Nat’l Harmony Mem’l Park , 520 F. Supp. 2d 209, 212 (D.D.C. 2007) (“Knowledge of facts, and not k nowledge of the legal significance of those facts, cont rols the time of accrual.”) H owever, “a trial judge may determine the date of accrual ‘as a matter of law only if no reasonable p erson could disagree on the date.’”
See Tolbert , 520 F. Supp. 2d at 211 (quoting Kuwait Airways Corp. v. American Sec. Bank, N.A. , 890 F.2d 456, 463 n.11 (D.C. Cir. 1989)). T hat is not the case here. Taking the factual allegations of the complaint as true, and drawing all reasonabl e inferences in FiberLight’s favor,19 it is not apparent from the face of the complaint that the disc overy rule is inapplicable. It, therefore, is not apparent that FiberLight’s breach of contractclaim based on the alleged misrepresentation in Artic le 14.1 accrued in 2006 and not in 20 14. Accordingly, Count I will not be dismissed as barred by the statute of limitations. 10
2. Counts II and III WMATA argues that Counts II a nd III should be dismissed as tim e-barred because they rest on the “same misrepresentat ion” as Count I. Without expre ssing any opinion on the ultimate merits of this argument, it clear ly fails at this point given t he Court’s conclusion that Count I cannot be dismissed on statute of limitations grounds. 11
B. Failure to Allege Essential Elements As FiberLight’s claims are not barred by the thr ee-year statut e of limitations, the Court turns to WMATA’s argument that the amended complaint fails to a llege the essential elements of each claim.
1. Counts I and II WMATA initially argues that C ounts I and II fail to state a cl aim because the complaint fails to allege two essential elements of a claim for “fraudule nt misrepresentation” – “a false

10 Fiberlight argued in the alternative that under the “installme nt contract rule” each annual invoice constituted a new breach and started a new three-year s tatute of limitations because “every year, WMATA sends FiberLi ght an invoice misrepresenting a property interest and in return receives monetary compensation based on that misrepresen tation.” (Opp’n at 12.) Under that theory, FiberLight would at least be able to bring a breac h of contract claim covering the invoices from 2014 and thereafter . As the breach of contract c laim is not being dismissed on statute of limitations grounds , though, there is no need to address the merits of this argument now. 11 If it ultimately turns out that the all or part of Count I is barred by the statute of limitations, Count II will be barred to the same extent. Jack’s Canoes & Kayaks, LLC v. Nat’l Park Serv. , 937 F. Supp. 2d 18, 38 (D.D.C. 2013) (“As a general rule, an ac tion for declaratory judgment will be barred to the same extent the applicable statute of lim itations bars an underlying action in law or equity.”)20 representation [by WMATA] and jus tifiable reliance by FiberLigh t.” 12 (Mot. at 14.) But, as FiberLight points out, Counts I a nd II are not tort claims for fraudulent mispresentation. (Opp’n at 26 (“FiberLight’s claim is in br each of contract, that WMATA breached, inter alia , Articles 14 and 21 of the License Agreement.”) .) Rather, FiberLight has op ted, as it is e ntitled to do ( see
supra I(A)), to bring only a claim for breach of contract and to see k a declaratory judgment based on that alleged breach. Acco rdingly, the complaint need not allege the essential elements of a claim for fraudulen t misrepresentation. In its reply, WMATA reformulat es its argument, contending that the complaint also fails to adequately allege the eleme nts of a breach of contract claim . The elements of a breach of contract claims are: “(i) that a valid contract existed betweenthe parties; (ii) an obligation or duty arising out of that contrac t; (iii) a breach of that duty; and (iv) damages caused by the breach.” (Reply at 13 (citing Tsintolas Realty Co. v. Mendez , 984 A.2d 181, 187 (D.C. 2009)). WMATA argues that the complaint fails to adequately allege a br each of Article 14.1 because “FiberLight failed to plead a ny facts that would support its cl aim that the event of breach – a WMATA misrepresent ation – has even occurred.” (Reply at 13.) To support this argument WMATA focuses on the fact that the amended complaint does not s pecify what “information” FiberLight discovered in 2014 that led it to question the accur acy of the Article 14.1 representation. ( See Reply at 14 (“FiberLight continue s to assert that “sometime” i n 2014, it learned that WMATA did not have t he power and/or authority to l ease conduit rights to the WMATA System, but fails to provide what “fact” inspired this be lief. There is no indication that

12 In the District of Columbia, the elements of a “fraudulent mis representation” claim are: (1) a false representation; (2) in reference to a material fact; (3) the plaintiff relied upon the assertion; (4) plaintiff was justified in its reliance; and (5) plaintiff relied to its detriment.” (Mot. at 14 (citing Resolution Trust Corp. v. District of Columbia , 78 F.2d 606, 609 (D.C. Cir. 1996)).)21 FiberLight did any kind of indepe ndent research as to the owner ship rights of the WMATA System, or any indication that a third party suddenly appeared and challenged ownership of the WMATA System.”) But precisel y how or why FiberLight came to be lieve that Article 14.1 was “materially untrue” is not relevan t. What matters is whether the complaint has adequately alleged a breach of Article 14.1. The amended complaint alleges Fi berLight is a certified commun ications provider in the District of Columbia; that as s uch it has the right to utilize the public rights-of-way; that portions of the WMATA ROW (as defined by the License Agreement) are partof the public rights-ofway; and that there is no deed or other evidence that conclusiv ely establishes that WMATA has the right to lease conduit right s in those parts of the WMATA R OW. FiberLight’s conclusion may not be correct, but these factua l allegations, viewed in th e light most favorable to FiberLight and drawing all inferences in Fib erLight’s favor, are adequate to support the allegation that WMATA breached the License Agree ment by misrepresenting in Arti cle 14.1 its power and authority to lease conduit ri ghts in the WM ATA ROW.
2. Count III In the District of Columbia, “ all contracts contain an implied duty of good faith and fair dealing, which means that ‘neith er party shall do anything whic h will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.’” Allworth v. Howard Univ., 890 A.2d 194, 201 (D.C. 2006) (quoting Paul v. Howard Univ., 754 A.2d 297, 310 (D.C. 2000)). Liability lies for breach of the duty if a p arty (1) evades the spirit of the contract, (2) willfully renders i mperfect performance, or (3) i nterferes with performance by the other party. C & E Services, Inc. v. Ashland Inc. , 601 F. Supp. 2d 262, 276 (D.D.C. 2009). WMATA argues that Count III fa ils to state a claim for breach o f the duty of good faith and fair dealing “[t]o the extent Count I II alleges a cause of action ar ising outside of the contract between22 the parties.” (Mot. a t 16.) WMATA’s specific argument focuses on the allegation that one of the ways in which WMATA breached this duty was when it “[c]ommi tted, in a meeting on September 14, 2016, to provide [FiberL ight] a detailed explanat ion of its legal authority and property rights but failed to do s o.” (Am. Compl. ¶ 97(a).) According to WMATA, its alleged failure to provide the promise d information could not constitut e a breach of the duty of good faith and fair dealing because nothi ng in the License Agreement expressly requires WMATA to provide that information. (Mot. at 16 (citing C & E Services , 601 F. Supp. 2d at 275).) WMATA’s argument suffers from se veral problems. First, the al legation WMATA cites is only one of several allega tions supporting Count III ( see Am. Compl. ¶ 97(b)-(d)), and WMATA does not contend that any of these other allegations seek to impose an obligation on WMATA that arises “outside” of the License Agreement. In addit ion, the Court does not agree with WMATA’s view that allowing the claim to proceed based on the allegation in ¶ 97(a) would impermissibly “add new terms to the agreement.” See C & E Services , 601 F. Supp. 2d at 276. Rather, as FiberLight points out , the allegation in ¶ 97(a) tha t WMATA breached its duty of good faith and fair dealing by failin g to provide the informati on FiberLight sought and was promised is clearly “founded on” the License Agreement – both the representation in Article 14.1 and FiberLight’s request pur suant to Article 21.1 for good faith negotiations. T hat is all that the law requires to state a cla im. Accordingly, Count III will not be dismissed for failure to allege an essential element. 13

13 In the alternative, WMATA ar gues that Count III should be dism issed because “other count[s] of the complaint incorporate t hat claim.” (Mot. at 16.) WMATA ’s argument relies on Washington Metro. Area Transit Auth. v. Quik Serve Foods, Inc ., No. 04-cv-0687, 2006 WL 1147933 (D.D.C. Apr. 28, 2006), in whic h the court held that a claim for breach of the covenant of good faith and fair dealing is not a viable independent caus e of action “when the allegations are identical to other claims for relief under [an] established cause of act ion.” Id . at *5 (emphasis added). The Court does not find QuikServe to be persuasive. First, while the23 C. Twombly / Iqbal WMATA next argues that the compl aint “fails to state a claim under the Twombly / Iqbal standard, because FiberLight’s a llegations amount to little mor e than a collection of legal conclusions and conjecture, uns upported by any facts, or even f actual allegations, indicating that FiberLight’s claims are plausible on their face.” (Mot. at 18. ) The Supreme Court’s decisions in Twombly and Iqbalestablish that a court should dismiss a complaint for failure to state a claim if the complai nt does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief t hat is plausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)); Rudder v. Williams , 666 F.3d 790, 794 (D.C. Cir. 2012). To state a facially plau sible claim, a complaint must set fort h “factual content that allows the court to draw the reasonable inference that the defendant i s liable for the misconduct alleg ed.” Iqbal , 556 U.S. at 678. A complaint that pleads factual a llegations that are “‘merely con sistent with’ a defendant’s liability ... ‘stops short of the line betw een possibility and plausibili ty of entitlement to relief.’ “ Id. (quoting Twombly, 550 U.S. at 557). While the factua l allegations need not be “ detailed,” the Federal Rules demand more tha n “an unadorned, the-defendant-unl awfully-harmed-me

allegations supporting Count III c ertainly overlap with the all egations supporting Count I, they are not “identical.” In addition, the holding in QuikServe has been rejecte d by other judges in this district. See, e.g ., Jacobson v. Hofgard , 168 F. Supp. 3d 187, 208 (D.D.C. 2016) (rejecting QuikServe ’s holding and noting that QuikServe relied on a case which add ressed the issue in the context of a legal malpractice case, not a contract case). Fin ally, there is no requirement at the pleadings stage to choose betw een alternative remedies. See Modern Mgmt. Co. v. Wilson , 997 A.2d 37, 44 n.10 (D.C. 2010) (“[A] plain tiff is not required to elect between ... alternative claims before the case is submitted to the jury” (citation and interna l quotation marks omitted)); see also Jacobson v. Hofgard , 168 F. Supp. 3d at 208 (“Plaintiffs are not required at the p leadings stage to choose between alternative remedies.”).24 accusation.” Id. “Threadbare recitals of the ele ments of a cause of action, supp orted by mere conclusory statements, do not suffice.” Id. WMATA argues that there are ins ufficient factual allegations t o support FiberLight’s contention – which is critical t o each of its legal claims – th at WMATA misrepresented its right to lease conduit right s in its subway tunne ls. (Mot. at 18-19. ) However, the Court has already found, in rejecting WMATA’s argum ent that Counts I and II shoul d be dismissed for failure to allege the essential elements of a breach of contract claim, th at the amended complaint adequately alleges a misrepre sentation. Accordingly, WMATA’s a rgument is without merit.
III. FEDERAL RULE OF CIVIL PROCEDURE 9(b) Federal Rule of Civil Procedur e Rule 9(b) provides that “[i]n alleging fraud or mistake, a party must state with particular ity the circumstances constitut ing fraud or mistake.” Courts have interpreted this to mean that a plaintiff must plead with parti cularity “matters such as the time, place, and content of the false m isrepresentations, the misrepr esented fact, and what the opponent retained or the claimant lo st as a consequence of the alleged fraud.” Anderson v. USAA
Cas. Ins. Co ., 221 F.R.D. 250, 253 (D.D.C. 2004). WMA TA argues that Count I should be dismissed for failing “to satisf y the heightened-pleading requi rements for fraud and mistake under Rule 9(b).” (Mot. at 19.) Even though Count I is a clai m for breach of contract, WMATA contends that Rule 9(b) applies “[t]o the extent that FiberLigh t’s complaint is more accurately characterized as asserting claim s for fraudulent inducement, fr audulent misrepresentation or negligent misrepresentation.” ( Mot. at 19.) In response, Fibe rLight insists that Count I is only a claim for breach of contract and t hus “need not meet the requir ements of Rule 9(b).” ( See Opp’n at 38 (“FiberLight’s claim is not a fraud claim at this time.”) .) In the alterna tive, FiberLight contends that the complaint’s allegations “easily satisf[y]” th e heightened Rule 9(b) standard.25 WMATA’s argument is without mer it as it rests, once again, on a recharacterization of the breach of contract claim F iberLight has brought. As the Co urt has previously noted, it cannot do this. And Rule 9(b) does notapply to a breach of contract claim. See, e.g. , Citigroup Mortg. Loan Trust 2007-AMC3 ex rel. U.S. Bank, Nat. A ss’n v. Citigroup Glob. Markets Realty Corp. , No. 13 CIV. 2843, 2014 WL 1329165, at *4 (S.D.N.Y. Mar. 31, 201 4) (“[Where] Plaintiff seeks a cognizable remedy on a traditi onal breach of contract claim that does not sound in fraud, Rule 9(b) does not apply”). In addi tion, even if Rule 9(b) were to apply, FiberLight has pleaded with sufficient particularity the “ time, place and content” of any p ossible misrepresentation. See
United States ex rel. Head v. Kane Co. , 798 F. Supp. 2d 186, 193 (D.D.C. 2011) (Courts “must not rigidly apply the requirement s of Rule 9(b), but rather sho uld analyze the Rule on a case by case basis.”). Accordingly, WMATA’s argument that Count I shou ld be dismissed for failure to comply with Rule 9(b) is rejected.
CONCLUSION For the reasons stated above, WM ATA’s motion to dismiss FiberLi ght’s amended complaint will be denied. A separate Order accompanies this M emorandum Opinion.

/s/ Ellen Segal Huvelle ELLEN SEGAL HUVELLE United States District Judge Date: June 12, 2017