1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) MILLENNIUM SQUARE RESIDENTIAL ) ASSOCIATION, ) ) Plaintiff, ) ) v. ) Civil Action No. 11-1632 (BJR) ) 2200 M STREET LLC, ) et al., ) ) Defendants. ) ___________________________________ )
I. INTRODUCTION Plaintiff Millennium Square Residential A ssociation (“MSRA”) f iled this action over problems with the maintenance and repair of the Millennium Square Condominium’s parking garage. The Complaint sets forth claims ag ainst 2200 M Street LLC, the developer of the condominium; Millennium Washington Commercial Trust (“Millennium Trust”), Millennium CAF II (“Millennium CAF”) (collectively the “Millennium Defendants”), the Millennium Square Commercial Association (“MSCA”), a nd seven individuals who are either on the condominium’s Board of Directors or th e Board’s Executive Committee (“Individual Defendants”). All of the defendants have brough t motions seeking to dismiss the claims brought against them. The plaintiff, MSRA, moves to dismiss the defendants’ counterclaims. Having reviewed the parties’ briefs, ar guments, relevant case law and the entire record, the court grants the motions to dismiss brought by Millennium Trust and MSCA and denies the motions brought by the other defendants. The c ourt grants the plaintiff’s motion to dismiss the counterclaim count of unjust enrichment, and denies the rema inder of the plaintiff’s motion to dismiss the Millennium Defendants’ counterclaims.2 II. FACTUAL BACKGR OUND AND PROCEDURAL HISTORY The Millennium Square Condominium is a mixed-use condominium containing 161 residential units, four commercial units, a Ritz-Car lton hotel, a fitness facilit y, a retail unit, and a parking facility (“Parking Unit”), located in Washington D.C. 1 The Parking Unit provides parking for both commercial unit owners and resi dential unit owners. The Millennium Square Condominium was created under the District of Columbia’s Condomi nium Act when the Condominium’s Declaration, Bylaws and Plat (“governing document s”) were recorded. Compl. ¶¶ 2-4. The governing documents created MSRA, a residents’ association for residents of Millennium Square Condominium. The MSRA is governed by the Residential Executive Committee. Id. ¶¶ 2-3, 8. Each owner of a resi dential unit is a member of the MSRA and each owner enters into a 98-year lease for the exclus ive use of at least one parking space located within the Parking Unit. Section 1 of the parking leases states th at the residentia l unit owners are obligated to pay the Millennium Defendants fees to cover part of the Millennium Defendants’ operating expenses, including maintenance, for the Parking Unit. 2 According to the Complaint, the defendants have represented that Millennium Trust owns the Parki ng Unit through a trustee named Millennium CAF II, LLC, fo r the benefit of and at the direction of 2200 M Street LLC, and that 2200 M Street LLC designed and develo ped Millennium Square. Id. ¶¶ 4, 6-10, 45. The Complaint alleges that Millennium Trust is a real estate investment trust. Id. ¶ 9. The owners of the commercial units are members of the MSCA, which is governed by a Commercial Executive Committee. The Complaint defines the MSCA as an “unincorporated association”

1 The Complaint alleges that the parking facility itself is a commercial unit. Compl. § 42.

2 According to the Complaint, between 2001 and August 2011, the Millennium Defendants charged, and MSRA has paid, $1,842,934.08 for the al leged operating expenses of the Parking Unit. Compl. ¶¶ 46-47.3 that was created under the District of Columbia Condominium Act. Id. ¶ 2, 19. All of the Individual Defendants except Cr aig Mooney are members of the Board of Directors of the Condominium Unit Owners Association, 3 and all of the Individual Defendants are members of the Commercial Executive Committee. Id. ¶¶ 6, 11-18. A. The Complaint According to the Complaint, Section 3.4 of th e Condominium Declaration states that “the Bylaws shall govern the division of maintenan ce and repair responsibilities between the Unit Owners, the Unit Owners Association, the Resi dential Association and the Commercial Association.” Compl. ¶ 41. Section 15(b)(1) of the Condominium’s Bylaws states that “each Commercial Unit Owner shall keep the Commerci al Unit and its equipment, appliances and appurtenances in good order, condition and repair and in a clean and sa nitary condition.” Section 13.1(c) of the Bylaws states that “the Commercial Executive Committee shall, on behalf of the Commercial Association . . . [p]rovide for the operation, car e, upkeep and maintenance of the Commercial Sections, additions, alterations, renovations or improvements to the Commercial Section[.] Id. ¶ 42, 50. Section 18.1 of the Bylaws states that the “Bylaws may not be modified or amended except as provided in . . . the C ondominium Act[,]” which MSRA alleges requires amendments to condominium instruments to be in writing. Pl.’s Stmt. of P. & A. in Supp. of Mot. to Dismiss the Counterclai ms (“Pl.’s Mem.”) Ex. A. The Complaint states that the Parking Unit has “numerous structural problems” that have deleteriously affected the residents’ ability to use their parking spaces and created safety hazards such as conditions that cause re sidents to slip and fall, conditio ns that cause vehicles parked

3 According to the Complaint, the Condomini um Unit Owners Association administers and manages the Condominium, and is responsible for the maintenance, repair and replacement of common elements of the Condominium. Compl. ¶ 5.4 inside the Parking Unit to corrode , and conditions that cause mold to accumulate. The failure of the defendants to fix the Parking Unit has allege dly deleteriously affected the marketability and value of the residential units. The Complaint alle ges that the structural problems would cost at least $600,000 to fix. Co mpl. ¶¶ 29-30, 39. MS RA has asked the defendants to fix the structural problems with the Parking Unit, but th e defendants have not done so. MSRA asserts that 2200 M Street LLC knew or should have known about the structural defects in the Parking Unit, but did not inform prospectiv e purchasers of them. Id. ¶ 35. The nine-count Complaint seeks repair of the Parking Unit. The Complaint alleges one count of negligence against all defendants (C ount Six) and one count of breach of contract against all defendants for breaching the c ondominium governing documents (Count Eight); counts of breach of contract, br each of express warranty, and breach of implied warranty against the Millennium Defendants and MSCA seeki ng specific performance (Counts One through Four); one count of strict liab ility against the Millennium Defe ndants (Count Five), one count alleging a violation of the D.C. Consumer Pr otection Act against the Millennium Defendants (Count Seven); and one count of breach of fiduciary duty against the seven Individual Defendants (Count Nine). 2200 M Street LLC and Millennium Caf II filed a three-count counterclaim against the plaintiff, alleging thatMSRA breached the operating agreement and the parking lease (Counts One and Two), and one co unt of unjust enrichment (Count Three). B. Pending Motions The defendants have filed dispositive moti ons. The Individual Defendants have moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Counts Six, Eight, and Nine, arguing that the Complaint fails to state plausible cl aims of individual liab ility. The Millennium Defendants have moved under Rule 12(b)(6) to di smiss Counts Five and Six as barred by the5 economic loss doctrine. Millennium Washingt on Commercial Trust a nd MSCA have also moved under Rule 12(b)(6) to dismiss, arguing that they cannot be sued, and that the Complaint fails to state plausible causes of action ag ainst them. MSRA has moved to dismiss the counterclaims. III. ANALYSIS A. LEGAL STANDARD FOR A MOTION TO DISMISS “‘A complaint can be dismissed under Rule 12(b) (6) when a plaintiff fails to state a claim upon which relief can be granted.’” Howard Univ. v. Watkins , Civil Action No. 07-492 (RWR), 2012 WL 1454487, at *2 (D.D.C . April 27, 2012) (quoting Peavey v. Holder , 657 F. Supp. 2d 180, 185 (D.D.C. 2009) (citing Fed. R. Civ. P. 12 (b)(6))). Motions to dismiss under Rule 12(b)(6) test the legal sufficiency of a complaint. Smith-Thompson v. Dist. of Columbia , 657 F. Supp. 2d 123, 129 (D.D.C. 2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter, acceptable as true, to “state a claim to reli ef that is plausible on its face.” . . . A claim has facial plausibility when the plai ntiff pleads factual content that allows the court to draw the reasonable inferen ce that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 556, 570 (2007)). “The complaint must be cons trued in the light most favorable to the plaintiff and ‘the court must assume the truth of all well-pleaded allegations.’” Watkins , 2012 WL 1454487, at *2 (quoting Warren v. Dist. of Columbia , 353 F.3d 36, 39 (D.C. Cir. 2004)). “[A] complaint attacked by a Rule 12(b)(6) moti on to dismiss does not need detailed factual allegations[.]” Twombly , 550 U.S. at 555. However, “[w]here a complaint pleads facts that are ‘merely consistent with’ a defendant ’s liability, it ‘stops short of the line between possibility and plausibility of entitl ement to relief.’” Iqbal , 556 U.S. at 662 (quoting Twombly , 550 U.S. at 557.6 When assessing a motion brought under Rule 12(b)(6), a court avoi ds consideration of matters outside the pleadings, but may consider “t he facts alleged in th e complaint, documents attached as exhibits or incorporated by reference in the complaint,” Gustave-Schmidt v. Chao , 226 F. Supp. 2d 191, 196 (D.D.C. 2002), public r ecords, and “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[.]” Hinton v. Corr. Corp. of Am. , 624 F. Supp. 2d 45, 46 (D.D.C. 2009) (quoting Parrino v. FHP, Inc. , 146 F.3d 699, 706 (9th Cir. 1998)); Hartline v. Sheet Metal Workers’ Nat’l Pension Fund , 134 F. Supp. 2d 1, 8 (D.D.C. 2000). B. MOTION BY MILLENNI UM TRUST TO DISMISS Millennium Trust moves to dismiss the claims ag ainst it, arguing that as a trust, it is not a legal entity that can sue or be su ed in the District of Columbia. Millennium Trust’s Stmt. of Law in Supp. of Mot. to Dismiss (“Millennium Trust’s Mem.”) at 6. MSRA disagrees, and argues without citing any support in either case law or stat ute, that under District of Columbia law, Real Estate Investment Trusts ("REIT") have the capacity to sue and be sued, and that the Complaint alleges that Millennium Trust is a REIT. Pl.'s Stmt. of P. & A. in Opp'n to Millennium Trust's Mot. to Dismiss ("Pl.'s Opp'n to Millennium Trust") at 2-3 . Millennium Trust points out in its reply that it denied in its answ er that it was a REIT, and argues that its Declaration of Trust, attached to the reply, demonstrates that Millenn ium Trust is not a REIT because there are not 100 or more persons who hold a beneficial ownershi p in it. Millennium Trust’s Reply, at 3-4. As required when deciding a motion to dismiss under Rule 12(b)(6), this court will assume, without deciding, that Millennium Trust is a REIT . However, that does not resolve the inquiry. For entities that are not incorporated, the capacity to sue or be sued is determined by the law of7 the District where the court is located, here the la w of the District of Columbia. Fed. R. Civ. P. 17(b)(3). As indicated above, the parties offer no authorities as to whether trusts, organized in the manner that Millennium Trust is organized, have the capacity to be sued in the District of Columbia. 4 In general, “the common law of the Distri ct of Columbia is that an unincorporated association may not be sued in its own name.” Plan Committee v. Pricewaterhousecoopers,
LLP , Civil Action No. 02-1487 (TFH), 2007 WL 1191917, at *3-4 (D.D.C. April 20, 2007) (citing Catalyst & Chem. Servs., Inc. v. Global Ground Support , 350 F. Supp. 2d 1, 22 n. 19 (D.D.C.2004) (stating that “D.C. la w is even less obliging” than Maryland law to unincorporated entities attempting to sue); Pritchett v. Stillwell , 604 A.2d 886, 889 (D.C. 1992)(stating that “the common law of this jurisdiction is that neither a partnership nor an uni ncorporated association may be sued in its own name”). In addition, the ge neral rule is that “[a] trust is not an entity distinct from its trustees and capable of lega l action on its own behalf, but merely a fiduciary relationship with respect to propert y.” 76 Am Jur 2d Trusts § 3 (2005); see also Corcoran v. Rockwell , 410 A.2d 202, 204 (D.C. 1979) (citing Am. Jur. 2d Trusts while interpreting District of Columbia law regarding trusts). MSRA has notshown that the Millennium Trust is anything other than an unincorporated asso ciation that lacks the capacity to be sued. MSRA cites the opinions in Nat’l Cmty. Reinvestment Coalition v. Accredited Home Lenders Holding Co. , 573 F. Supp. 2d 70 (D.D.C. 2008) and Lemon v. Geren , 514 F.3d 1312, 1315 (D.C. Cir. 2008), as support for the argument that organizations like th e Millennium Trust have the capacity to be sued. However, neither case analyzed whethe r REITs were proper parties under District of Columbia law, and MSRA has not shown that the entities involved in those cases were the same

4 The parties do not full analyze or define the corporate form of Millennium Trust, other than apparently agreeing that it is no t an incorporated entity.8 type of entity as the Millennium Trust. The REIT defendant in Nat’l Cmty. Reinvestment Coalition was a “wholly-owned subsidiary of Accredite d, Inc.[,]” a corporation incorporated in the state of Florida, see Nat’l Cmty. Reinvestment Coalition , 573 F. Supp. 2d at 73, and the REIT defendant in Lemon was a publicly traded REIT incorporated in Maryland. Lemon , 514 F.3d at 1314. Further, while MSRA argues that this Court can keep an unincorpora ted entity as a party where it would be inequitable not to, MSRA ha s not explained why it is necessary to keep Millennium Trust in the case when the trustees and the beneficiaries of that trust remain as parties in the case. Millennium Trust’s motion will be granted. C. MOTION BY MSCA TO DISMISS MSCA moves to dismiss the claims against it, arguing that it is not a legal entity that can sue or be sued in the District of Columbia. MSCA’s Stmt. of P. &. A. in Supp. of Mot. to Dismiss (“MSCA’s Mem.”) at 7-8. The parties ag ree that MSCA is uninc orporated. They also agree that under D.C. Code § 29-1109(a) that “[a]n unincorpora ted nonprofit association shall have the capacity to sue and be sued in its ow n name.” What the parties dispute is whether MSCA is a “non-profit” association. MSRA argues that MSCA is a non-profit association because its bylaws define it as an “incorporat ed non-profit association,” and because MSCA’s bylaws state that the Commercial Executive Co mmittee, on behalf of the MSCA, has the authority to enforce “by legal m eans the provisions” of the governi ng documents. Pl.’s Opp’n to MSCA at 4-5. MSCA argues in its reply that it is not an unincorporated non-profit association under District of Columbia law. MSCA's reply at 2-6. MSCA additiona lly points out that the D.C. Code expressly precludes or ganizations formed under a statute (in this case the District of Columbia Condominium Act) from being considered an unincorpor ated non-profit association. MSCA’s Reply at 2-3; D.C. Code § 29-1102(5)(c ). As an unincorporat ed association that,9 because it was formed under the District of Co lumbia Condominium Act, does not meet the D.C. Code’s definition for unincorporat ed non-profit associations that can sue or be sued, MSCA is not a proper party and the claims against it will be dismissed. D. MOTION BY ALL DEFENDANTS TO DISMISS COUNTS 5 & 6 Count Five of the Complaint al leges a claim of strict liabil ity against all the Millennium Defendants. The Complaint alleges that the Mille nnium Defendants were an integral part of the marketing scheme that put the parking spaces in the Parking Unit into the stream of commerce, and that the spaces in the Parking Unit were l eased to MSRA and the public in a defective and unreasonably dangerous condition. Compl. ¶¶ 80-85. Count Six of the Complaint alleges a claim of negligence against all defendants. According to the Complaint, the defendants’ negligence put the health and safety of MSRA unit owners “at risk,” and damaged MSRA members’ vehicles. Id. ¶¶ 92-96. The Individual Defendants 5 and the Millennium Defendants move to dismiss Counts Five and Six of the Complaint, arguing 6 that the economic loss doctrine precludes MSRA’s claim for strict liability against the Mill ennium Defendants (Count Five), a nd claim of negligence against the Millennium Defendants and Individual Defendants (Count Six). See Indi vidual Defs.’ Stmt. of P. & A. in Supp. of Mot. to Dismiss (“Indivi dual Defs.’ Mem.”) at 18- 20; Millennium Defs.’ Stmt. of P. & A. in Supp. of Mot. to Dismiss (“Millennium Defs.’ Mem.”) at 6-7.

5 David Cvijic, David Goben, Edward Wierzel, Jo e Gulitti, Amy Press, Craig Mooney, and Tim O’Brien. 6 In their reply brief, the Mille nnium Defendants also argue for the first time that MSRA lacks standing to bring suit for personal injury or property damages, and that the parking leases entered into by the unit owners bar claims for personal injury and property damage. Because these arguments were raised for the first time in th eir reply brief, they will not be considered. See Presbyterian Med. Ctr. of the Univ . of Pa. Health Sys. v. Shalala , 170 F.3d 1146, 1152 (D.C. Cir. 1999) (stating that a court need not consider an argument first raised in a reply brief); D.L. v. Dist. of Columbia , 450 F. Supp. 2d 11, 20 n.6 (D.D.C. 2006) (“Defendants should have included this argument in their motion to dismiss, ratherthan waiting to raise it in their Reply.”).10 The economic loss doctrine is a rule that prevents a party fromalleging a tort claim, such as negligence or strict products liability, “‘wh ere the only damage is to the product itself.’” Capital Motor Lines v. Detroit Diesel Corp ., 799 F. Supp. 2d 11, 16 (D.D.C. 2011) (quoting Liberty Mut. Ins. Co. v. Equipment Corp. of America , 646 F. Supp. 2d 51, 56 (D.D.C. 2009) (internal citation omitted)). “Unde r the economic loss doctrine, a pl aintiff [suing in tort] may not recover the ‘loss of value or use of the product itself, cost to repa ir or replace the product, or the lost profits resulting from the loss or use of the product.’” Capital Motor Lines , 799 F. Supp. 2d at 16 (quoting Potomac Plaza Terraces, Inc. v. QSC Products, Inc. , 868 F. Supp. 346, 354 (D.D.C. 1994)(internal citations omitted)). The defendants argue that the only damage alleged in the Complaint was damage to the Parking Unit itself, and that the claims in Count s Five and Six are truly contract claims shoehorned into a tort framework, and as such should be dismissed. While defendants’ arguments are well taken regarding the bulk of the damages a lleged in the Complaint, the Complaint does allege damage - - corrosion to vehicles, personal in juries that occurred in the Parking Unit, and reduced marketability of the residential units - - that occurred to property that cannot be said to be part of the same “produc t” as the Parking Unit. See Council of Co-Owners Atlantis Condominium, Inc. v. Whiting-Turner Contracting Co. , 517 A.2d 336, 338 (Md. 1986) (denying a motion to dismiss a condominium owners’ associ ation suit against a gene ral contractor where the alleged construction default cr eated “a threat to the safety and welfare of the owners and occupants” of the condominium). Counts Five and Six will not be dism issed as barred by the economic loss doctrine.11 E. INDIVIDUAL DEFENDANTS’ MOTIONS TO DISMISS The Individual Defendants move to dismi ss the claims alleged against them, found in Counts Six, Eight and Nine of the Complaint. The Individual Defe ndants argue that the allegations in the Complaint fail to state a cl aim for negligence because the actions of the Individual Defendants are protected under the business judgment rule and the economic loss doctrine, and because the Complaint fails to plea d essential elements of negligence (Count Six), breach of fiduciary duty (Count Nine), or breach of contract (Count Eight) claims against the Individual Defendants. 7 MSRA disagrees, and argues th at the economic loss doctrine and business judgment rules are inapplicable, and th at the Complaint generally pleads viable causes of action for negligence, breach of co ntract, and breach of fiduciary duty. 8
I. NEGLIGENCE The Individual Defendants argue that the Complaint fails to allege the essential elements of a claim for negligence against them. Individual Defs.’ Stmt. of P. & A. in Supp. of Mot. to Dismiss (“Individual Defs.’ Mem.”) at 12-14. According to the Individual Defendants, the Complaint does not contain a plausible allegatio n that the Individual De fendants breached a duty to MSRA. Id. To establish negligence under D.C. law, a plaintiff must allege “‘a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant, and damage to the interests of the plaintiff, pr oximately caused by the breach.’” Sigmund v. Starwood Urban Retail VI, LLC , 617 F.3d 512, 514 (D.C. Cir. 2010) (quoting Dist. of Columbia v. Beretta , 872 A.2d 633, 641 (D.C. 2005) (internal quotation omitted)). “The existence of a legal duty being an essential element of a negligence claim under District of Columbia law, the plaintiffs ‘must

7 The Individual Defendants raise the Business J udgment Rule as a defense, but do not specify the claim it is a defense to. A review of the releva nt caselaw indicates that it is best analyzed as a defense to the claim of breach of fiduciary duty in Count Nine. 8 The court has already ruled that the ec onomic loss doctrine is not applicable, supra , pp. 9-10, and will not repeat its reasoning here.12 specify a negligent act and charac terize the duty whose breach might have resulted in negligence liability.’” Simms v. Dist. of Columbia , 699 F. Supp. 2d 217, 227 (D.D.C. 2010) (quoting Dist. of Columbia v. White, 442 A.2d 159, 162 (D.C. 1982) (interna l quotation omitted)). “[T]he ‘plaintiff must allege facts which show that th e defendant breached some legally imposed duty owed to the plaintiff.’” Simms , 699 F. Supp. 2d at 227 (quoting White, 442 A.2d at 162). As mentioned above, Count Six of the Compla int alleges a claim of negligence against all defendants. The Complaint alleges that the bylaws and the D.C. C ondominium Act impose a duty on behalf of the Individual Defendants, as members of the Condominium’s Board of Directors, to maintain, repair and replace comm on elements of the condominium such as the Parking Unit. Compl. ¶ 5. According to the Complaint, the bylaws im posed on each of the Individual Defendants a duty of care to design, build, construct, market, promote, sell, lease, maintain and repair the Parking Unit, and the defendants breached that duty by designing and constructing a defective Parking Unit, by failing to maintain it, and by failing to notify the MSRA of its defects in a timely manner. Id. ¶¶ 86-91. The Complaint also alleges that, despite notices of defects in the Parki ng Unit, the Individual Defendants failed and refused to “timely enforce the statutory and other warranties . . . failed and refused to timely enforce the repair and maintenance obligations of the Millennium Defenda nts” regarding the Parking Unit, and failed to “take appropriate action to timely perform re pairs and maintenance to components of the Condominium that are part of the” Parking Unit . Id. ¶ 52. The Compla int alleges that those failures were in bad faith, and were the result of self-interest on beha lf of the Individual Defendants. Id. The Complaint further alleges th at those failures damaged the health and safety of MSRA unit owners, and damaged MSRA member s’ vehicles. Id. ¶¶ 92-96. Therefore, the Complaint specifies a negligent act and characteri zes the duty whose breach might have resulted13 in negligence liability. The Individu al Defendants reliance on the opinion in Simms is misplaced.
In Simms , while the plaintiff alleged th at the defendant owed a duty to the plaintiff, the plaintiff failed to cite in its Complaint “any facts” supporting that the duty was breached. Simms , 699 F. Supp. 2d at 227. Here, the Complaint asserts that the Individual Defendants owed a duty of care to MSRA, identifies the basis for that duty, describes the circumst ances in which the individual plaintiffs allegedly did not fulfill their duty to MSRA, and alleges that the Individual Defendants’ failure to act was a proximate cause of harm that o ccurred to MSRA. The claim of negligence against the In dividual Defendants is adequately plead and will not be dismissed. II. BREACH OF CONTRACT Count Eight of the Complaint alleges a claim of breach of c ontract against all defendants, including the Individual Defendant s. The Complaint alleges that the governing documents of the Owners Association created a valid and enforceabl e contract between MSRA and the Individual Defendants, obligating the Indivi dual Defendants to take “such ac tion as may be necessary to maintain and repair the Condominium” and to “enforce the responsibilities of the Millennium Defendants to carry out their maintenance and repa ir obligations related” to the Parking Unit. Compl. ¶¶ 110-111. According to the Complaint, the Individual Defendants breached that contractual obligation by failing to require the performance of n ecessary maintenance and repair of the Condominium and the Parking Unit. Id. ¶¶ 112. The Individual Defendants contend that Count Eight does not contain fact s supporting the assertion that th e Individual Defendants were parties to the governing documents and therefore must be dismi ssed as to them. Individual Defs.’ Mem. at 14-15. The Court co ncludes otherwise. The elements for a claim of breach of contract under D.C. law are: “‘(1) a valid contract between the parties; (2) an obliga tion or duty arising out of the cont ract; (3) a breach of that duty;14 and (4) damages caused by breach.’” Paulin v. George Wash. Univ. Sch. of Med. , 878 F. Supp. 2d 241, 246 (D.D.C. 2012) (quoting Mesumbe v. Howard Univ. , 706 F. Supp. 2d 86, 94 (D.D.C. 2010) (internal quotation omitted)). A valid and en forceable contract requires the: 1) express intention of the parties to be bound; 2) agreement to all material terms, and 3) the assumption of mutual obligations. See Gaujacq v. EDF, Inc. , 601 F.3d 565, 579 (D.C. Cir. 2010); Steven R. Perles, P.C. v. Kagy, 473 F.3d 1244, 1249 (D.C. Cir. 2007); Simon v. Circle Assocs. , 753 A.2d 1006, 1012 (D.C. 2000); Jack Baker, Inc. v. Office Space Dev. Corp. , 664 A.2d 1236, 1238 (D.C. 1995). The party asserting the existence of a contract has the burden of proving all three requirements. See New Econ. Capital, LLC v. New Mkts. Capital Grp. , 881 A.2d 1087, 1094 (D.C. 2005). In order to form a binding agreement, all “parties must have the distinct intention to be bound; without such intent, there can be no assent and ther efore no contract.” RDP Techs., Inc. v. Cambi AS , 800 F. Supp. 2d 127, 141 (D.D.C. 2011) (quoting Jack Baker, Inc. v. Office Space Dev. Corp. , 664 A.2d 1236, 1238 (D.C. 1995)). Here, MSRA has alleged a plausible claim of breach of contract against the individual defendants. While the Individual Defendants did not sign the governing documents, MSRA alleges that they manifested their intent to be bound by the governing documents by accepting their positions on the board. In the District of Columbia, condo minium instruments, such as bylaws and the sales agreement, are contracts “between the unit owners and the condominium association.” 1230-1250 Twenty-Third St. Cond o. Unit Owners Ass’n v. Bolandz , 978 A.2d 1188, 1191 (D.C. 2009) (citing Lacy v. Sutton Place Condo. Ass’n , 684 A.2d 390, 393 (D.C. 1996)); see also Johnson v. Fairfax Vill age Condominium IV Unit Owners Ass’n , 548 A.2d 87, 91 (D.C. 1988). The bylaws of the condominium association are a “‘form of private law making,’” and individuals who choose this form of ownership, by agreement, forego some of15 the traditional incidents of ownership. [ Fairfax Village Condo. IV , 548 A.2d at 91] (quoting Ryan v. Baptiste, 565 S.W.2d 196, 198 (Mo. Ct. App. 1978)). Except as otherwise stated in the co ndominium instruments or by law, the condominium association has the power to regulate the use of the common elements of the condominium. D.C. Code § 45-1848 (a)(6) (1996); see also Johnson v. Hobson, 505 A.2d 1313, 1317 (D.C. 1986) (The condominium’s governing body has broad authority to regulate affairs of the development and to adopt reasonable rules). Lacy v. Sutton Place Condo. Ass’n , 684 A.2d 390, 393 (D.C. 1996). In addition, MSRA cites the opinions in Bolandz v. 1230-1250 Twenty-Third St. Condo.
Unit Owners Ass’n , 849 A.2d 1010, 1012 (D.C. 2004), and Willens v. 2720 Wis. Ave. Coop.
Ass'n , 844 A.2d 1126, 1135-1136 (D.C. 2004), two cases wh ere District of Colombia courts allowed breach of contract claims against Boards of Directors to be advanced. Count Eight will not be dismissed as it applie s to the Individual Defendants. III. BREACH OF FIDUCIARY DUTY Count Nine of the Complaint alleges that the Individual Defenda nts, as officers or members of the Board of Directors, owed fiducia ry duties to the reside ntial unit owners, whose interests are represented by th e MSRA. Compl. ¶¶ 114-118. According to the Complaint, the defendants breached that duty by willfully, in bad faith, failing to maintain the Parking Unit in a safe and proper manner in accordance with the governing documents. Id. ¶¶ 119. The Individual Defendants argue that Count Nine’s claim of breach of fiduciary should be dismissed. The Individual defendants argue that Count Nine should be dismissed because their actions were protected by the business judgment rule. Th e Individual Defendants also argue that the Complaint does not plausibly alle ge that the Individual Defendants owed MSRA fiduciary duties, or that if they did owe su ch duties that the Individual Defendants breached16 them. Individual Defs.’ Mem. at at 10-11, 16-18. 9 To make a legally cognizable claim of breach of fiduciary duty under District of Columbia law, a plaintiff “must allege facts sufficient to show (1) the existence of a fiduciary relationshi p; (2) a breach of the du ties associated with the fiduciary relationship; and (3) injuries that were proximately caused by the breach of the fiduciary duties.” Armenian Genocide Museum & Memorial , Inc. v. Cafesjian Family Found.,
Inc ., 607 F. Supp. 2d 185, 190-191 (D.D.C. 2009) (citing Paul v. Judicial Watch, Inc. , 543 F. Supp. 2d 1, 5-6 (D.D.C. 2008). “District of Columbia law has deliberately left the definition of ‘fiduciary relationship’ flexible, so that the relationship may cha nge to fit new circumstances in which a special relationship of trust may properly be implied.” Teltschik v. Williams & Jensen,
PLLC , 683 F. Supp. 2d 33, 46 (D.D.C. 2010); see also Council on American-Islamic Relations Action Network, Inc. v. Gaubatz , 793 F. Supp. 2d 311, 341-42 (D.D.C. 2011) (finding that plaintiff’s factual allegations were sufficient to survive a mo tion to dismiss even assuming no contractual relationship existed when the re lationship “extended beyond the normal bounds of a contractual relationship to fo rm a special relationship f ounded upon trust and confidence”) (internal citation omitted)). Whether a fiduciary relationship exists is a fact-intensive question, and the fact-finder must consider “the nature of the relationship, the promises made, the type of services or advice given and the legiti mate expectations of the parties.” Firestone v. Firestone , 76 F.3d 1205, 1211 (D.C. Cir. 1996) (quoting Church of Scientology In t’l v. Eli Lilly & Co. , 848 F. Supp. 1018, 1028 (D.D.C. 1994)).

9 The Individual Defendants also argue that th e claim for breach of fiduciary duty against Mooney should be dismissed because he was not a me mber of the Board of Directors. Individual Defs.’ Mem. at 16. MSRA has not responded to this argument, and thus has conceded it. See Maib v. FDIC , 771 F. Supp. 2d 14, 20 (D.D.C. 2011) (“[t ]he plaintiffs do not address this argument in their opposition to the motion to dismiss, and therefore have waived any opposition or have conceded the issue”).17 Here, the Complaint alleges a cognizable clai m for breach of fiduciary duty against the Individual Defendants that falls outside of the purview of the business judgment rule. “The District of Columbia courts have adopted th e business judgment rule, which is a ‘presumption that in making a business decision the directors of a corporation act ed on an informed basis, in good faith and in the honest belief that the act ion taken was in the best interests of the company.’” Armenian Assembly of Am. v. Cafesjian , 772 F. Supp. 2d 20, 104 (D.D.C. 2011) (quoting Behradrezaee v. Dashtara , 910 A.2d 349, 361 (D.C. 2006) (internal quotation omitted)). “Where the rule applies, the business judgment of the fiduciary will be respected by the courts absent an abuse of discretion.” Cafesjian , 772 F. Supp. 2d at 104. The Complaint alleges that the Individual Defe ndants were directors of the M illennium Defendants or entities controlled by the Millennium Defendants, and that , acting in bad faith, th ey failed to force the Millennium Defendants to fix the Parking Unit out of self-interest –- namely, the protection of their employment with the Millennium Defendants. “Where the [business judgment] rule applies, the business judgment of the fiduciary wi ll be respected by the courts absent an abuse of discretion . . . [h]owever, the business judgmen t rule does not apply where the officers or directors ‘lack independence relative to the decision, do not act in good faith, act in a manner that cannot be attributed to a rational business purpose or re ach their decision by a grossly negligent process that includes the failure to cons ider all material facts reasonably available.’” Cafesjian , 772 F. Supp. 2d at 104 (quoting Behradrezaee , 910 A.2d at 361). Count Nine’s claims against the Individual Defe ndants will not be dismissed. F. MSRA’S MOTION TO DISMISS COUNTERCLAIMS The Millennium Defendants filed a thr ee count counterclaim alleging two counts of breach of contract and one count of unjust enri chment. According to the counterclaim, in 200318 MSRA and the residential owners wanted to have more oversight and c ontrol over the portion of the Parking Unit that they used, and to that e nd entered into an oral operating agreement to manage and control the residen tial parking section of the Parking Unit. Counterclaim ¶¶ 14-15. According to the Millennium Defendants, MS RA assumed the maintenance and repair obligations of the residential pa rking section of the Parking Unit, and because of that, since 2003, MSRA has been billed only a pro rata portion of the shared operating expenses of the Parking Unit. The counterclaim alleges that in 2003, the residential parking sec tion of the Parking Unit was physically separated from the rest of the Parking Unit by a chain link fence and a company was hired by MSRA to manage the residential s ection of the Parking Unit, consistent with the alleged oral operating agreement. Id. ¶¶ 14-16. Count One of th e counterclaim alleges that the MSRA breached the operating agreement by failing to repair the residential portion of the Parking Unit. Id. ¶¶ 29-37. Count Two of th e counterclaim alleges that if the operating agreement is deemed unenforceable, MSRA and th e unit owners were all in default of the original parking lease because they had not paid the full amount, more than three million dollars according to the counterclaim, of the operating expe nses due under the terms of that lease. Id. ¶¶ 39-42. Count Three alleges that MSRA and the residential unit owners were unjustly enriched by failing to pay their true share of the operating expens es of the Parking Unit. Id. ¶¶ 44-46. I. DUTY MSRA has moved under Rule 12(b)(6) to dismi ss the counterclaim in its entirety. MSRA first argues that the countercla im fails to allege a duty on beha lf of MSRA because the governing documents imposed a duty on the Millennium Defe ndants to operate and maintain the Parking Unit that could not be modified or extinguished by an oral agreement. Pl.’s Mem. at 4-7. As19 mentioned above, the elements for a claim of breach of contract under D.C. law are: “‘(1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by breach.’” Paulin , 878 F. Supp. 2d at 246 (quoting Mesumbe , 706 F. Supp. 2d at 94 (internal quotation omitted)). A valid and enforceable contract requires the: 1) express intention of the parties to be bound; 2) ag reement to all material terms, and 3) the assumption of mutual obligations. Gaujacq. , 601 F.3d at 579. The party asserting the existence of a contract has the burden of proving both requirements. New Econ. Capital, LLC , 881 A.2d at 1094. Under the law of the District of Columbia, parties may orally modify a written contract through mutual consent, provided that ‘the modification possess[es] the same elements of consideration as necessary for normal contract formation.’” St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc. , 573 F. Supp. 2d 152, 173 (D.D.C. 2008) (quoting Hershon v. Hellman Co. , 565 A.2d 282, 283 (D.C. 1989)). Here, the counterclaim does allege that the or al agreement created a duty on behalf of MSRA that is not completely foreclosed by, or inconsistent with, the governing documents. The counterclaim is based not on a modification of the original obliga tion, but on a separate agreement. MSRA does not dispute that the Millennium Defendants could contract with a separate entity to maintain the Parking Unit, and the Millennium Defendants are essentially arguing that they contracted -- through the or al agreement -- with MSRA to fulfill that obligation. The counterclaims sufficiently allege a duty. II. STATUTE OF LIMITATIONS MSRA also argues that any claims alleged in the counterclaim are limited by the statute of limitations to those that occu rred within the past three years. MSRA’s Mem. at 12. In the District of Columbia, claims for breach of c ontract are subject to a three-year statute of20 limitations. D.C. Code § 12-301. The limitations period begins to run at the time of the defendant's breach. Murray v. Wells Fargo Home Mortg., 953 A.2d 308, 319-20 (D.C. 2008) (citation omitted). The limitations period for a claim for breach of contract may be tolled under the “discovery rule” so that the limitations peri od does not begin to run until a plaintiff has actual or inquiry notice of its cause of action. Harris v. Ladner , 828 A.2d 203, 205-06 (D.C. 2003). “In addition, where the defendant has done anything . . . to lull the plaintiff into inaction, thereby affirmatively inducing the plainti ff not to file a timely lawsuit, the defendant may be estopped from asserting the bar of the statute of limitations.” Beard v. Edmondson & Gallagher , 790 A.2d 541, 546 (D.C. 2002) (internal citatio n omitted). Here, MSRA does not allege the statute of limitations as a reason to dismiss the counterclaim. Instead, it argue s that it is a reason to limit the damages in the event that the countercla im is successful. Furthermore, Millennium Defendants raise a factual dispute by alleging th at MSRA’s course of conduct lulled them into not timely raising their claims. The factual dispute raised here will not be resolved at this time, and the counterclaim will not be dismisse d as barred by the statute of limitations. III. UNJUST ENRICHMENT MSRA argues that the claim for unjust enri chment is prohibited because there is an express contractual relationship between the partie s. “‘Unjust enrichment occurs when a person retains a benefit (usually m oney) which in justice and e quity belongs to another.’” Movahedi v. U.S. Bank, N.A. , 853 F. Supp. 2d 19, 29 (D.D.C. 2012) (quoting 4934, Inc. v. D.C. Dep’t of Emp’t Servs. , 605 A.2d 50, 55 (D.C. 1992)). Under District of Columbia law, a “plaintiff states a claim for unjust enrichment when: (1) the plain tiff confers a benefit upon the defendant; (2) the defendant retains the benefit; a nd (3) under the circumstances, the defendant's retention of the benefit is unjust.” Sabre Int'l Sec. v. Torres Advanced Enter. Solutions , 820 F. Supp. 2d 62, 7621 (D.D.C. 2011) (citing News World Communications v. Thompsen , 878 A.2d 1218, 1222 (D.C. 2005)). Here, the counterclaim does not allege a plausi ble claim of unjust enrichment. “Because both promissory estoppel and unjust enrichment pr esuppose that an express, enforceable contract is absent, District of Columbia courts generally prohibit litigants from asserting these claims when there is an express contract that governs the parties' conduct.” Plesha v. Ferguson , 725 F. Supp. 2d 106, 112 (D.D.C. 2010). Here, the parties have alleged at least tw o agreements - - the oral agreement and the condominium documents - - that governed their relationship. There is no space left for the counterclaimants assertion of unjust enrichment, and that claim will be dismissed. CONCLUSION MSRA has not shown that Millennium Trust and MSCA are entities that can sue or be sued. MSRA’s Complaint states plausible causes of action for negligence, breach of contract and breach of fiduciary duty agains t the Individual Defendants and fo r strict liability against the Millennium Defendants. The counterclaim allege s a plausible claim of breach of contract, but does not allege a plausible claim of unjust en richment. Therefore, it is hereby ORDERED AS FOLLOWS: 1) The motions [8, 14] to dismiss the Complaint against Millennium Washington Commercial Trust and Millennium Square Commercial Association are hereby GRANTED. 2) The Individual Defendants’ motion [13] to dismiss is hereby GRANTED in part and DENIED in part. Count Nine is dismi ssed as to defendant Craig Mooney. The remainder of the motion is denied.22 3) The Millennium Defendants’ joint motion [9] to dismi ss counts 5 and 6 is hereby
DENIED. 4) The plaintiff’s motion [23] to dismiss the counterclaim is hereby GRANTED in part and DENIED in part. SO ORDERED. July 10, 2013

BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE