1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WHARF, INC., et al., 

Plaintiffs, 

v. 

DISTRICT OF COLUMBIA, et al.., 

Defendants. 

Civil Action No. 15-1198 (CKK)

MEMORANDUM OPINION

(January 12, 2017) 

Plaintiffs filed suit on July 23, 2015, against the District of Columbia (“the District”) as 

well as Hoffman-Madison Waterfront, LLC (“HMW”) and Wharf Horizontal REIT Leaseholder, 

LLC (“WHRL”), collectively, the “Developer Defendants.” Plaintiffs allege that the Developer

Defendants violated the terms of the parties’ lease agreements, and that the District violated the 

Takings Clause of the Fifth Amendment by impeding access to the leased property. On May 9, 

2016, Defendant WHRL filed its First Amended Counterclaim against Plaintiffs for unjust 

enrichment, quantum meruit, and ejectment under a theory of breach of contract or, in the 

alternative, as tenants at sufferance.

Presently before the Court are: Plaintiffs’ [61] Motion to Dismiss Wharf Horizontal REIT 

Leaseholder LLC’s Amended Counterclaims; Developer Defendants’ [58] Motion to Strike 

Plaintiffs’ Demand for Jury Trial; Defendants’ [57] Motion to Set a Rule 16 Initial Scheduling 

Conference; and Plaintiffs’ [62] Motion for Leave to File a Surreply to Developer Defendants’ 

Reply in Further Support of their Motion to Set a Rule 16 Initial Scheduling Conference. Upon 
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consideration of the pleadings,

1 the relevant legal authorities, and the record as a whole, the Court: 

DENIES Plaintiffs’ [61] Motion to Dismiss Wharf Horizontal REIT Leaseholder LLC’s Amended 

Counterclaims; DENIES WITHOUT PREJUDICE Developer Defendants’ [58] Motion to Strike 

Plaintiffs’ Demand for Jury Trial; DENIES AS MOOT Defendants’ [57] Motion to Set a Rule 16 

Initial Scheduling Conference; and DENIES AS MOOT Plaintiffs’ [62] Motion for Leave to File 

a Surreply to Developer Defendants’ Reply in Further Support of their Motion to Set a Rule 16 

Initial Scheduling Conference for the reasons described herein. 

I. BACKGROUND

A. Factual Background 

By way of background, the Court shall briefly set out the facts as alleged in Plaintiffs’ First 

Amended Complaint, reserving further presentation of the facts alleged in WHRL’s First Amended 

Counterclaim for the discussion of the individual issues below. This case concerns the Municipal 

Fish Market located at 1100 Maine Avenue, S.W., Washington, D.C. (“Municipal Fish Market” or 

“the Market”). Compl. ¶ 1. Plaintiffs, Wharf, Inc. (“The Wharf”), BRW, Inc. (“Captain White”), 

 1 While the Court bases its decision on the record as a whole, its consideration has focused 

on the following documents: 1st Am. Compl. (“Compl.”), ECF No. [17]; 1st Am. Counterclaim, 

ECF No. [56]; Pls.’ Mot. to Dismiss WHRL’s Am. Counterclaims (“Pls.’ Mot. to Dismiss”), ECF 

No. [61]; Def./Counterclaim-Pl. WHRL’s Br. in Opp’n to Pls.’ Mot. to Dismiss WHRL’s First 

Am. Compl. (“WHRL’s Opp’n to Pls.’ Mot. to Dismiss”), ECF No. [64]; Pls.’ Reply Mem. in 

Supp. of Pls.’ Mot. to Dismiss WHRL’s 1st Am. Counterclaim (“Pls.’ Reply to Mot. to Dismiss”), 

ECF No. [66]; Developer Defs.’ Mot. to Strike Pls.’ Demand for a Jury Trial (“Developer Defs.’ 

Mot. to Strike Jury Demand”), ECF No. [58]; Pls.’ Resp. to Developer Defs.’ Mot. to Strike Pls.’ 

Demand for a Jury Trial (“Pls.’ Resp. to Developer Defs.’ Mot to Strike Jury Demand”), ECF No. 

[65]; Developer Defs.’ Reply in Supp. of Their Mot. to Strike Pls.’ Jury Demand (“Developer 

Defs.’ Reply to Mot. to Strike Pls.’ Jury Demand”), ECF No. [67]; Defs.’ Mot. to Set a R. 16 Initial 

Sch. Conf., ECF No. [57]; Pls.’ Opp’n to Defs.’ Mot. to Set a R. 16 Initial Sch. Conf., ECF No. 

[59]; Defs.’ Reply in Further Supp. of Their Mot. to Set R. 16 Initial Sch. Conf., ECF No. [60]; 

Pls.’ Mot. for Lv. to File a Surreply to Defs.’ Reply in Further Supp. of Their Mot. to Set R. 16 

Initial Sch. Conf., ECF No. [62]. These motions are fully briefed and ripe for adjudication. In an 

exercise of its discretion, the Court finds that holding oral argument would not be of assistance in 

rendering its decision. See LCvR 7(f).
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and Salt Water Seafood, Inc. (“Salt Water”), run three seafood businesses in the Municipal Fish 

Market and bring this action as lessees of property located within the Market. Id. ¶ 2. Each of the 

Plaintiffs’ businesses is owned and operated by members of the White family. Id. ¶ 34. Defendants 

are the District of Columbia (“the District”), the original lessor of the property at issue, and the 

Developer Defendants HMW and WHRL, the private entities to which the District assigned its 

rights to the leases in question in 2014. Id. ¶¶ 1, 44. 

 The commercial leases at issue are: the agreement entered into by The Wharf and the 

District dated July 12, 2000, id. ¶ 35; the agreement entered into by Captain White and the District 

dated July 12, 2000, id. ¶ 37; and the agreement originally entered into by Pruitt’s Seafood, Inc., 

and the District dated April 1, 2001, and subsequently assumed by Salt Water (allegedly then doing 

business as W.D., Inc.) from DNM Seafood, Inc. on March 20, 2014, with the consent of thenlessor, the District, id. ¶ 40, Ex. D. The term of the lease agreements at issue is defined as “[t]he 

period that begins on the Commencement Date and ends thirty (30) Lease Years after the New 

Rent Commencement Date, unless sooner terminated pursuant to this Lease.” 2

 Id., Ex. A at 7; id., 

Ex. C at 6; id., Ex. D at 16.

3

 On April 23, 2014, the District assigned the leases at issue to 

Developer Defendants. Id. ¶ 44. Plaintiffs allege that Developer Defendants breached the terms 

of their lease agreements and otherwise interfered with their use of the leased property. See 

generally id. ¶¶ 91-160. 

 2 A court may consider “‘the facts alleged in the complaint, documents attached as exhibits 

or incorporated by reference in the complaint.’” See, e.g., Ward v. D.C. Dep’t of Youth Rehab. 

Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (quoting Gustave-Schmidt v. Chao, 226 F. Supp. 

2d 191, 196 (D.D.C. 2002)). 

3 Page numbers for exhibits attached to the Complaint refer to the numbers automatically 

assigned to the documents as they were filed in ECF. 
4

In their Complaint, Plaintiffs raise one claim against the District, a Fifth Amendment 

Takings Clause claim (Count I), related to access to the leased property. Plaintiffs also raise eight 

state and common law claims against the Developer Defendants: declaratory judgment (Count II); 

specific performance and injunctive relief based on breach of lease (Count III); damages based on 

breach of lease (Count IV); breach of the covenant of good faith and fair dealings (Count V); 

trespass and conversion (Count VI); nuisance (Count VII); tortious interference with prospective 

business advantage (Count VIII); and unjust enrichment (Count IX). Plaintiffs “request a jury trial 

for the appropriate claims for which a jury is permissible.” Compl. at 38. Defendants now move 

the Court to strike Plaintiffs’ jury demand on the grounds that the lease agreements contain a 

binding waiver of jury trial. 

Defendant WHRL filed its First Amended Counterclaim against Plaintiffs. Specifically, 

WHRL seeks to recover from Plaintiffs on the ground of unjust enrichment and quantum meruit. 

Defendant WHRL also asserts that it is entitled to immediate possession of the leased premises 

either on the grounds of breach of contract or because Plaintiffs are tenants at sufferance. Plaintiffs 

now seek to dismiss all of WHRL’s counterclaims against them. 

B. Procedural Background

On August 12, 2015, Plaintiffs filed a Motion for Preliminary Injunction against Developer 

Defendants based on the Developer Defendants’ alleged breaches of the parties’ lease agreements. 

Specifically, Plaintiffs sought an order from the Court directing Developer Defendants to: (1) cease 

further construction and encroachments onto the Common Area of the Municipal Fish Market 

without meeting the conditions precedent in the Lease Agreements; and (2) to leave Plaintiffs to 

quietly enjoy their leased property by ending their wrongful efforts to evict Plaintiffs through 

proceedings in the Superior Court of the District of Columbia and otherwise harass Plaintiffs. 
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Plaintiffs also requested that this Court stay the pending eviction proceedings in the Superior Court 

of the District of Columbia.4

 

On August 13, 2015 and August 19, 2015, respectively, Developer Defendants and the 

District filed motions to dismiss Plaintiffs’ First Amended Complaint. Defendants asserted that 

Plaintiffs did not hold valid leases to the property in question because the leases were terminated. 

As such, the Developer Defendants contended that the Court should dismiss Plaintiffs’ claims 

against them in their entirety. Developer Defs.’ Mot. to Dismiss at 6, ECF No. [20-1]. The District 

also asserted that Plaintiffs did not have legally enforceable interests in the property and, 

consequently, could not establish that the District had taken their property without just 

compensation. Def. D.C.’s Mot. to Dismiss at 6, ECF No. [25-1]. Alternatively, the District

argued that Plaintiffs’ Takings Clause claim was time-barred by the applicable statute of 

limitations. Id. at 4-6. 

On September 28, 2015, the Court issued two Memorandum Opinions and Orders denying 

the motions to dismiss filed by the District and the Developer Defendants as well as Plaintiffs’ 

motion for a preliminary injunction. Notably, the Court found that the language of the lease 

agreements was ambiguous and susceptible to different interpretations, one which would render 

the leases valid at this time and one which would render the leases expired. As such, the Court 

explained: “In order to determine the appropriate interpretation of the ambiguous provision, the 

Court must examine the parties’ intention in light of the circumstances surrounding their execution 

of the agreements and/or by applying rules of construction.” Wharf, Inc. v. District of Columbia, 

 4 The eviction proceedings in the Superior Court of the District of Columbia subsequently 

were voluntarily dismissed without prejudice by WHRL. WHRL’s Opp’n to Pls.’ Mot. to Dismiss 

at 12 n.10. 
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133 F. Supp. 3d 29, 42 (D.D.C. 2015). The Court shall summarize the basis for this holding 

because it is relevant to the Court’s analysis of the instant motions. 

In reaching this holding, the Court focused on the operation of two different lease 

provisions. As the Court explained, the parties’ lease agreements contemplate two distinct time 

periods in the lease, one occurring prior to the completion of the “Landlord’s Work” and one 

commencing upon completion of the “Landlord’s Work.” See Compl., Ex. A at 4-5; id., Ex. C at

4-5; id., Ex. D at 14-15. Specifically, the leases set annual minimum rent “Before New Rent 

Commencement Date” and the annual minimum rent “After New Rent Commencement Date.” 

Id., Ex. A at 4-5; id., Ex. C at 4-5; id., Ex. D at 14-15. The “New Rent Commencement Date” is 

the date upon which the “Landlord’s Work” is substantially completed, as signaled by the receipt 

of a Certificate of Substantial Completion from the Corps of Engineers. Id., Ex. A at 5; id., Ex. C 

at 5; id., Ex. D at 15. The “Landwork’s Work” is defined in the lease agreements as certain 

improvements that the parties agree should be made to the Municipal Fish Wharf with $3,000,000 

appropriated from the federal government and from other sources of funding available to the 

landlord. Id., Ex. A at 8-9; id., Ex. C at 8; id., Ex. D at 17-18. The lease agreements further 

provided that: “Landlord shall use reasonable commercial efforts to complete Landlord’s Work by 

June 30, 2001, but shall have no liability to Tenant if it is unable to complete Landlord’s Work by 

that date or by any other date.” Id., Ex. A at 9 (emphasis added); id., Ex. C at 8 (emphasis added); 

id., Ex. D at 18 (emphasis added). 

Here, the parties agree that the Landlord’s Work has not been completed. In light of this 

fact, the parties presented different arguments in their briefing on the motions to dismiss about the 

operation of Provision 38.E of the leases that provides: 

Rule Against Perpetuities. Notwithstanding any provision in this Lease to the 

contrary, if the Lease Term has not commenced within three (3) years after the date 
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of this Lease, this Lease shall automatically terminate on the third (3rd) anniversary 

of the date hereof. The sole purpose of this provision is to avoid any possible 

interpretation that this Lease violates the Rule Against Perpetuities or other rule of 

law against restraints on alienation.

Id., Ex. A at 26; id., Ex. C at 24; id., Ex. D at 34. In their motion to dismiss, Developer Defendants 

asserted that this provision provides that the leases would terminate if after three years of the date 

of their execution, the New Rent Commencement Date had not been triggered by the completion 

of the Landlord’s Work. As such, it was the Developer Defendants’ contention that the leases 

expired in light of the fact that the Landlord’s Work was not completed within three years of the 

execution the lease. Plaintiffs argued that the provision provides that the leases would terminate 

if the “Lease Term,” or the date of the lease agreement, had not commenced within three years. 

While “Lease Term” was not defined in the lease, “Term” is defined as “[t]he period that begins 

on the Commencement Date and ends thirty (30) Lease Years after the New Rent Commencement 

Date, unless sooner terminated pursuant to this Lease.” Id., Ex. A at 7; id., Ex. C at 6; id., Ex. D at 

16. The “Commencement Date” is defined as “[t]he date of this lease.” Id., Ex. A at 4; id., Ex. C 

at 4; id., Ex. D at 14. As such, it was Plaintiffs’ position that the “Lease Term” commenced on 

the date of each lease and, accordingly, the three commencement dates fall within the three-year 

window provided by Provision 38.E. 

The Court found that Provision 38.E is ambiguous and that each party offered a reasonable 

interpretation of the provision. The Court declined to interpret Provision 38.E at this early stage 

of the proceeding, noting “‘interpretation of ambiguous contract language, particularly if it 

requires consideration of extrinsic evidence, is a question of fact . . . .’” Wharf, Inc., 133 F. Supp. 

3d at 42 (quoting Flynn v. Dick Corp., 481 F.3d 824, 831 n.7 (D.C. Cir. 2007)). The Court further 

summarized its holding in addressing Plaintiffs’ motion for a preliminary injunction:
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[T]he Court left open the issue of whether Plaintiffs have valid leasehold interests 

in the property at issue until the factual record in this action is further developed. 

Relatedly, the Court has not yet addressed the merits of either party’s arguments 

regarding the alleged breaches of the lease agreements or Plaintiffs’ argument that 

if the leases have terminated, then the Court should apply certain equitable 

principles. In sum, the Court’s only holding at this time with respect to the parties’ 

lease agreements is that the language of Provision 38.E is ambiguous. 

Mem. Op. (Sept. 28, 2015), at 6, ECF No. [47]. The Court now turns to the parties’ instant motions.

II. LEGAL STANDARD

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

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

Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require that a complaint contain “‘a short 

and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord 

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). “[A] complaint [does not] suffice if it 

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

662, 678 (2009) (quoting Twombly, 550 U.S. at 557). Rather, a complaint must contain sufficient 

factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” 

Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content 

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

alleged.” Iqbal, 556 U.S. at 678. 

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

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

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

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

deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, 
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documents attached as exhibits or incorporated by reference in the complaint,” or “documents 

upon which the plaintiff’s complaint necessarily relies even if the document is produced not by 

the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. D.C. Dep’t of 

Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (citations omitted). The same 

standards govern a motion to dismiss with respect to an opposing party’s counterclaims. See 

Ellipso, Inc. v. Mann, No. 05-1186, 2006 WL 1126814, at *1 (D.D.C. Apr. 27, 2006). 

III. DISCUSSION

A. Plaintiffs’ Motion to Dismiss WHRL’s Amended Counterclaims

WHRL advances four counterclaims against Plaintiffs, three of which are premised on 

WHRL’s contention that the lease agreements at issue are no longer valid. WHRL advances two 

theories under which these leases would be terminated: (1) the leases were void ab initio because 

the terms of the leases exceed the Mayor’s authority; and (2) the leases were terminated no later 

than 2004 by the operation of Provision 38.E. Based on this premise, WHRL raises three quasicontract claims seeking equitable relief in quasi-contract: unjust enrichment (Count I); quantum 

meruit (Count II); and tenants at sufferance (Count VI). In the alternative, WHRL contends that 

if the Court finds the leases are valid, WHRL is entitled to relief under its breach of contract claim 

(Count III). WHRL seeks to recover monetary damages for all of its claims and also requests 

Plaintiffs’ ejectment from the property at issue under alternative theories based in contract (Count 

III) and in equity (Count IV). 

Plaintiffs argue that WHRL’s counterclaims should be dismissed because WHRL: (1) 

misconstrues the leases and the law to erroneously conclude that the leases expired or that the 

leases were void ab initio; (2) fails to sufficiently plead that Plaintiffs breached the lease 

agreements either because WHRL failed to provide a sufficient factual basis to satisfy the pleading 
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standards and/or because the alleged actions, even if true, would not constitute breaches under the 

leases or were remedied by Plaintiffs; (3) neglects to consider that certain provisions of the leases 

survive and govern the parties’ relationship even if the leases themselves are no longer valid; (4) 

sets forth claims that are time barred; (5) improperly bases its quasi-contract claims on the premise 

that it made improvements and provided maintenance to the property; and (6) requests relief that 

cannot by granted by this Court under District of Columbia law. The Court shall address each 

argument in turn. 

1. Validity of the Leases

The Court shall not reconsider Plaintiffs’ assertion that the leases did not expire by 

operation of Provision 38.E for the reasons already discussed by the Court in ruling on Defendants’ 

motions to dismiss. Indeed, in ruling on those motions, the Court specifically held that Provision 

38.E is ambiguous and both parties advanced reasonable interpretations of the Provision, one 

which would render the leases valid and one which would render the leases expired. The Court 

expressly declined to interpret Provision 38.E at the motion to dismiss stage and explained that 

this issue would best be decided on an expanded factual record. The Court finds no reasons to 

disturb that ruling at this time, particularly when the factual record remains largely the same 

because the parties have not yet engaged in discovery.5

 As such, the Court declines to dismiss 

WHRL’s quasi-contract claims on the grounds that the leases did not expire by operation of 

 5

 The Court referred this matter to mediation from October 22, 2015, through March 15, 

2016, after ruling on Defendants’ motions to dismiss and Plaintiffs’ motion for a preliminary 

injunction. After mediation was unsuccessful, Defendants filed their Answers to the Amended 

Complaint and their Counterclaims. The parties’ subsequently filed motions and related briefing 

thereto currently pending before the Court. 
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Provision 38.E because WHRL has set forth a plausible claim as to the alleged termination of the 

leases.6

2. Plaintiffs’ Alleged Breaches of the Lease Agreements

In its First Amended Counterclaim, WHRL alleges fifteen breaches to the leases committed 

by Plaintiffs. 1st Am. Counterclaim ¶¶ 47-139. However, Plaintiffs argue that all of the breaches 

alleged by WHRL are either: (1) not sufficiently pled; or (2) are not breaches at all under the terms 

of the lease. For the reasons described herein, the Court finds that WHRL has sufficiently pled 

the breaches at issue in its First Amended Counterclaim. Furthermore, the Court finds no basis to 

dismiss WHRL’s claims at this juncture based on Plaintiffs’ representations that the conduct at 

issue does not constitute breaches under the lease agreements.

Turning first to Plaintiffs’ allegation regarding the sufficiency of the pleadings, Plaintiffs 

assert that six of the alleged breaches are not factually supported. Pls.’ Reply to Mot. to Dismiss 

at 8 n.4; see also Pls.’ Mot. to Dismiss at 10-24. The Court shall address each alleged breach as 

set forth in the First Amended Counterclaim in turn. First, WHRL asserts that Plaintiffs breached 

the lease by “repeatedly permitt[ing] their employees to park in the customer parking spaces in the 

Common Area of the Fish Market since at least April 23, 2014, and continue to permit their 

employees to park in the Fish Market Common Area.” 1st Am. Counterclaim ¶ 77. Second, 

WHRL asserts that Plaintiffs “have not properly protected their barges from the entry of animals, 

 6 WHRL provides an alternative basis for its quasi-contract claims, arguing that the leases 

were void ab initio because the Mayor of the District of Columbia exceeded the authority vested 

in him pursuant to the D.C. Appropriations Act of 2001, Pub. L. No. 106-522, § 162(a), 114 Stat. 

2484, at 2484–85 (2000), by entering into leases for a term of more than 30 years. 1st Am.

Counterclaim ¶¶ 27-32. Plaintiffs contend that “[g]iven the history of the negotiation [surrounding 

the leases], this claim is implausible.” Pls.’ Mot. to Dismiss at 9. The Court declines to reach this 

argument setting forth an alternative basis under which the leases may no longer be valid at this 

time because it already has determined that WHRL has alleged plausible claims in quasi-contract 

based on its theory that the leases terminated by operation of Provision 38.E. 
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which is a violation of Title 25 of the D.C. Municipal Regulations and of the purported leases.” 

Id. ¶ 102. Third, WHRL argues that “[t]he horizontal space occupied by the barges and floating 

docks located in Premises Nos. 2, 16, and 17 exceeds the space permitted by the alleged leases, 

for which the Landlord has not given its consent, and therefore constitutes a default under Sections 

1.J and 13 of the purported leases.” Id. ¶ 207. Moreover, WHRL alleges that the horizontal space 

occupied by these specified barges and floating docks still exceeded the space permitted under the 

alleged leases on April 17, 2016, the date that WHRL asserts the 30-day cure period expired. Id. 

¶ 208. Fourth, WHRL asserts that “[a]s of April 17, 2016, . . . [Plaintiffs] were continuing to leave 

conditions that were dirty and full of rubbish throughout the Premises and the Common Area.” Id.

¶ 214. Fifth, WHRL alleges that “[a]s of April 17, 2016, . . . . [Plaintiffs left] objects and 

equipment, such as forklifts, carts, pallets, baskets, empty boxes, and barrels in the Common Area, 

in violation of the Rules and Regulations.” Id. ¶ 220. Finally, WHRL asserts that Plaintiffs have 

“repeatedly place[d] signs and displays in the Common Area including ‘sandwich board’-style 

signs, which are explicitly prohibited by the Rules and Regulations.” Id. ¶ 132. WHRL argues 

that Plaintiffs “claim that they have cured this default by removing all sandwich board-style signs,” 

id. ¶ 222, but Plaintiffs “continued to place other types of signs and displays in the Common Area,” 

id. ¶ 223. Upon review of the First Amended Counterclaim, the Court finds that WHRL has 

sufficiently pled each of these claims to survive a motion to dismiss. As set forth above, WHRL 

has alleged sufficient facts which, if accepted as true, state a plausible claim and provides Plaintiffs 

with adequate notice of WHRL’s claims.7

 See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 

 7 While Plaintiffs assert that WHRL incorrectly argued that breach of contract claims are 

subject to a lower pleading standard, here the Court has reviewed WHRL’s First Amended 

Counterclaim in light of the standard set forth in Twombly. See Pls.’ Reply to Mot. to Dismiss at 

7. 
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at 570) (Under Federal Rule of Civil Procedure 8(a), a court is authorized to dismiss a complaint 

that does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face.’”); see also Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977) (“The 

purpose of . . . [Rule 8] is to give fair notice of the claim being asserted so as to permit the adverse 

party the opportunity to file a responsive answer, prepare an adequate defense and determine 

whether the doctrine of res judicata is applicable.”).

Plaintiffs next argue that the Court should dismiss certain claims raised by WHRL because 

the alleged conduct does not constitute breaches under the terms of the lease agreements.8 The 

Court has reviewed Plaintiffs’ arguments with respect to the breaches alleged by WHRL and finds 

that Plaintiffs have not presented a basis for the Court to dismiss the counterclaims for two reasons. 

First, Plaintiffs appear in several instances to request that the Court accept as true facts outside of 

the pleadings to make a determination that Plaintiffs’ conduct does not constitute breaches of lease 

agreements. Second, the Court has yet to determine the scope of the parties’ rights, if any, under 

the lease agreements. Here, WHRL has sufficiently alleged specific conduct that it asserts violates 

 8 Specifically, Plaintiffs argue the following are not breaches under the terms of the lease 

agreements: 

(1) Plaintiff Saltwater’s alleged unpermitted construction; (2) Plaintiffs’ alleged 

failure to carry insurance; (3) Plaintiffs’ alleged permitting employees to park in 

the Common Area (to the extent WHRL alleges contractors and dumpsters parked 

in the Common Area); (4) Plaintiffs’ alleged operation of a wholesale business; (5) 

Plaintiff The Wharf’s alleged operation of a dining barge; (6) Plaintiffs’ alleged 

sale of soda and fried chicken; (7) Plaintiffs’ alleged horizontal expansion of their 

barges (to the extent expansion of Barge 2 is alleged); (8) Plaintiff Saltwater’s 

allegedly unconsented installation of a sign; (9) that Plaintiffs have left the property 

unclean (to the extent the allegations extend to the cleanliness of the Common 

Area); (10) Plaintiffs alleged failure to operate businesses in the Premises; and (11) 

Plaintiffs’ trucks allegedly acting as advertisements.

Pls.’ Reply to Mot. to Dismiss at 9-10 n.5; see also Pls.’ Mot. to Dismiss at 10-24.
14

particular lease provisions such that it may survive a motion to dismiss. The Court notes that it 

declines at this time to provide an exacting interpretation of each of the lease provisions when it is 

unclear whether the lease agreements are even valid in light of the ambiguity of Provision 38.E. 

Moreover, if the Court determines that the lease agreements are still valid and binding on the 

parties, it would benefit from a more complete factual record related to the conduct at issue to 

make a determination if the conduct constitutes breaches. In sum, the Court finds no grounds to 

dismiss WHRL’s counterclaims at this juncture based on Plaintiffs’ assertions that WHRL failed 

to plead sufficient facts to support its breach of contract claims or Plaintiffs’ assertions that the 

conduct at issue does not constitute breaches under the provisions of the lease agreements. 

3. Holdover Provisions of the Lease Agreements 

Next, Plaintiffs contend that WHRL cannot maintain quasi-contract claims against them 

because even if the lease agreements have expired, the parties are still bound by the holdover 

provision of the leases and that provision dictates any damages that WHRL may recover. The 

provision at issue provides: 

If Tenant lawfully remains in possession of the Premises after the expiration of the 

Term, Tenant shall be a tenant from month to month, upon all the terms hereof 

which are not inconsistent with such tenancy; provided, however, that Tenant 

covenants to pay to Landlord as Minimum Rent during such tenancy one hundred 

fifty percent (150%) of the Minimum Rent in effect immediately before expiration 

of the Term, in addition to all other rent and other charges due hereunder. Such 

tenancy may be terminated by Landlord or Tenant upon thirty (30) days notice.

Compl., Ex. A at 17; id., Ex. C at 18; id., Ex. D at 28. As an initial matter, the Court notes that it 

has not reached the issue of whether the leases are binding at this time. However, while Plaintiffs 

assert that even if the leases expired or were void ab initio, that the holdover provision would still 

bind the parties, it is not entirely clear from the language of the Provision that it would be in force 

and would govern the parties’ relationship. As such, the Court declines to dismiss WHRL’s quasi-
15

contract claims on the grounds that the holdover provisions of the lease agreements would dictate 

the confines of the parties’ relationship if the leases are no longer valid.9

 Plaintiffs are not 

precluded from raising this argument at a later stage in the proceeding if they deem it necessary. 

However, based on this record, the Court cannot conclude that this argument serves as a basis to 

dismiss WHRL’s quasi-contract claims against Plaintiffs.

4. Statute of Limitations

Next, Plaintiffs contend that WHRL cannot maintain any claims in quasi-contract because 

such claims are barred by a three-year statute of limitations. Specifically, Plaintiffs argue that 

WHRL advanced a theory that the lease expired in 2003 or 2004, or earlier, and that WHRL’s 

unjust enrichment and quantum meruit claims accrued at that time. It is Plaintiffs’ position that 

WHRL’s claims are subject to a three-year statute of limitations and, accordingly, are timebarred.10 WHRL disputes this contention, noting that its legal interest in the property at issue was

first conveyed to it by the District of Columbia in April 2014 and that it is not seeking any 

compensation for the period prior to that time. 

 9 The Court notes that it has reviewed the cases cited by Plaintiffs in support of their 

contention that the provision would be binding even if it finds that the leases terminated by 

operation of Provision 38.E or that they were void ab initio. However, none of these cases appear 

to bind the Court to Plaintiffs’ interpretation of the holdover provision at issue. See generally

Wolff v. Westwood Mgmt., LLC, 558 F.3d 517 (D.C. Cir. 2009) (discussing the applicability of an 

arbitration clause in an agreement); Jordan Keys & Jessamy, LLP v. St. Paul Fire & Marine Ins. 

Co., 870 A.2d 58 (D.C. 2005) (holding that an unjust enrichment claim should be dismissed 

because one party was not unjustly enriched); Grimes v. Newsome, 780 A.2d 1119 (D.C. 2001) 

(addressing the issue of whether the notice to correct or vacate month-to-month tenants was 

sufficient); Bingham v. Goldberg, Marchesano, Kohlman, Inc., 637 A.2d 81 (D.C. 1994) (holding 

that a party who did not raise a quantum meruit claim in the complaint because it relied on its 

contention that an express contract was binding, could not add a quantum meruit claim as an 

alternative basis for a claim through a pretrial statement or pretrial order).

10 WHRL does not concede that the statute of limitations period is three years, but the Court 

need not reach that issue because WHRL has advanced plausible claims that are not conclusively 

barred even under a three-year statute of limitations.
16

Here, Plaintiffs have failed to show that WHRL’s claims are conclusively time-barred and, 

as such, the Court must deny their request for a dismissal of the counterclaims based on a statute 

of limitations argument. First, WHRL contends that it did not have an enforceable interest in the 

property until April 2014, less than two years before WHRL first raised its counterclaims against 

Plaintiffs. See Developer Defs.’ Answer to Pls.’ 1st Am. Compl. & Counterclaim, ECF No. [54]. 

Second, the parties dispute the import of the District of Columbia Court of Appeals’ opinion in 

News World Communications, Inc. v. Thompsen, 878 A.2d 1218 (D.C. 2005), to the statute of 

limitations issue related to WHRL’s quasi-contract claims in the instant action. Plaintiffs assert 

that WHRL’s quasi-contract claims are barred under News World Communications, because such 

claims begin to run “when the enrichment actually becomes unlawful.” Pls.’ Mot. to Dismiss at 

24 (quoting News World Commc’ns, Inc., 878 A.2d at 1225). However, as WHRL properly notes,

the court in News World Communications explained: “[T]he statute of limitations begins to run 

when the plaintiff’s last service has been rendered and compensation has been wrongfully 

withheld.” 878 A.2d at 1219; see also Def.’s Opp’n to Pls.’ Mot. to Dismiss at 7. Here, it is 

WHRL’s position that it first rendered “services” that conferred a benefit upon Plaintiffs in April 

2014. 

Notably, News World Communications was decided on a fully developed record after trial

by the D.C. Court of Appeals. As this Court noted in its earlier opinion, “Because statute of 

limitations defenses often are based on contested facts, the court should be cautious in granting a 

motion to dismiss on such grounds; ‘dismissal is appropriate only if the complaint on its face is 

conclusively time-barred.’” Rudder v. Williams, 47 F. Supp. 3d 47, 50 (D.D.C. 2014) (quoting 

Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996)). Here, the Court finds, without 

deciding, that WHRL has presented a plausible argument that its claims are not barred by the 
17

statute of limitations and Plaintiffs have not responded to this argument in their reply brief. As 

such, the Court shall deny Plaintiffs’ request to dismiss WHRL’s quasi-contract claims on the basis 

that they are time-barred under the statute of limitations. 

5. WHRL’s Alleged Improvement and Maintenance 

WHRL alleges that it is currently undertaking construction work that includes, among other 

things, making certain improvements to the property outlined in the Land Disposition Agreement 

(“LDA”) between WHRL and the District at WHRL’s “sole cost and expense.” 1st Am.

Counterclaim ¶¶ 11-12. WHRL outlines in detail the alleged improvements that it made the 

property since April 2014, including: building a new, signalized intersection at Maine Avenue 

including a dedicated left-hand turn lane and temporary access while the intersection was being 

built, id. ¶¶ 42-44; utility work, id. ¶ 45(a); upgrading and installing site lighting, id. ¶ 45(b); 

improving landscaping, id. ¶ 45(c); construction of expanded parking spaces, id. ¶ 45(d); 

demolition and reconstruction of the Maine Avenue sidewalk, id. ¶ 45(e); construction of public 

restrooms, id. ¶ 45(f); and the addition of dedicated directional and informational signs for the Fish 

Market, id. ¶ 45(g). In its unjust enrichment claim, WHRL asserts that it conferred a benefit on 

Plaintiffs by permitting them to occupy the property and performing various improvements, and 

that Plaintiffs received “substantial windfalls” as the result of paying rent significantly below fair 

market value. Id. ¶¶ 232-33. In its quantum meruit claim, WHRL asserts that it rendered valuable 

services to Plaintiffs by permitting Plaintiffs “to occupy the premises at the Fish Market, 

performing various maintenance functions for the Fish Market Common Area, and implementing 

various improvements to the Fish Market.” Id. ¶ 237. WHRL asserts that while Plaintiffs have 

accepted and enjoyed these services, WHRL expected to be paid these services and has not been 
18

compensated. Id. ¶¶ 238-40. These assertions underlie WHRL’s counterclaims for unjust 

enrichment and quantum meruit. 

Plaintiffs contend that the Court should dismiss these claims for several reasons. First, 

Plaintiffs assert that they were not part of WHRL’s negotiations with the District of Columbia 

when WHRL and the District entered into a LDA for the property at issue. Second, Plaintiffs argue 

they “have not requested, and have repeatedly objected to, the Developer’s activities, which 

constitute breaches of the Plaintiffs’ leases.” Pls.’ Mot. to Dismiss at 26. Finally, Plaintiffs assert 

that the fact that WHRL agreed to undertake certain improvements at its “sole cost and expense”

is fatal to its unjust enrichment and quantum meruit counterclaims.

Here, the Court concludes that WHRL has set forth plausible claims for unjust enrichment 

and quantum meruit and, as such, the Court shall not dismiss the claims based on this record. As 

WHRL points out, Plaintiffs raise certain questions of fact: whether the alleged benefits were 

wanted or requested; and whether Plaintiffs were on notice that WHRL expected payment. These 

are issues that cannot be resolved at the motion to dismiss stage on this factual record. Here, 

WHRL has sufficiently set out the alleged improvements that it asserts that it made to the property 

and alleged that Plaintiffs accepted these improvements and that WHRL expected compensation 

for these services. Indeed, as WHRL notes, “it is, of course, possible for it to be true that WHRL 

agreed with the District of Columbia that the improvements and other benefits would be made at 

WHRL’s sole cost and expense – as opposed to the cost and expense of the District of Columbia 

– and also true that WHRL expected to be compensated (or reimbursed) by the tenants at the 

Municipal Fish Market for those improvements and other benefits.” WHRL’s Opp’n to Pls.’ Mot. 
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to Dismiss at 10-11. As such, the Court shall deny Plaintiffs’ request that the Court dismiss 

WHRL’s unjust enrichment and quantum meruit counterclaims for the reasons described above.11

6. WHRL’s Request for Ejectment

Finally, WHRL seeks the ejectment of Plaintiffs from the property based on a theory of

breach of contract (Count III) or, in the alternative, tenants at sufferance (Count IV). In addition 

to seeking ejectment, WHRL also seeks monetary damages under both counterclaims. Plaintiffs 

contend that the WHRL cannot maintain an action requesting ejectment because the Superior Court 

of the District of Columbia possesses sole jurisdiction to hear eviction actions.12 As an initial 

matter, the Court notes that Plaintiffs’ argument takes issue with one portion of the remedies 

 11 The Court notes that it is not persuaded by Plaintiffs’ reliance on the D.C. Court of 

Appeals’ decision in Steuart Investment Co. v. The Meyer Group, Ltd., 61 A.3d 1227 (D.C. 2013),

in support of its argument for two reasons. First, as Plaintiffs note, the Steuart court expressly 

declined to reach the unjust enrichment claim. 61 A.3d at 1237. Second, and more importantly, 

the Steuart court analyzed the issue of whether a commercial real estate broker and a landlord had 

an implied-in-fact contract based on a factual record that had been fully developed through a twoday bench trial. Id. at 1230. The Court similarly finds Plaintiffs’ reliance on Geier v. Conway, 

Homer & Chin-Caplan, P.C., 983 F. Supp. 2d 22 (D.D.C. 2013), unpersuasive. In Geier, another 

district court in this jurisdiction dismissed an unjust enrichment claim finding in part that the 

plaintiffs had not alleged facts showing that they could have reasonably expected non-signatories 

of a consulting agreement to pay them as one basis for dismissing the claim. 983 F. Supp. 2d at 

41. In that case, plaintiffs sought to recover fees and costs for work they completed after they 

were retained to provide consulting services in support of petitions brought under the National 

Childhood Vaccine Injury Compensation Act in the U.S. Court of Federal Claims. The Court of 

Federal Claims declined to award the costs and fees requested by the plaintiffs and the plaintiffs 

brought the action in Geier against law firms that represented plaintiffs in the earlier case. Notably, 

the consulting agreement at issue provided that the plaintiffs would be paid out of the National 

Childhood Vaccine Injury fund which the Court of Federal Claims declined to award based on the 

work provided by the plaintiffs. See id. at 28. The court’s analysis in that case took into 

consideration the prior proceedings in the Court of Federal Claims as well as the specific language 

of the consulting agreement at issue. Here, as described above, the Court finds that WHRL has 

provided sufficient facts to make out plausible unjust enrichment and quantum meruit claims. 

12 Plaintiffs’ argument is based on the language of D.C. Code § 42-3210, which the Court 

has reviewed. The Court also has reviewed the parties’ briefing on this issue which presents 

different interpretations of the statute at issue. However, the Court declines to reach the merits of 

the parties’ arguments for the reasons described above. 
20

WHRL seeks under each of these counterclaims and even if Plaintiffs were to prevail on this 

argument, it would not dismiss either of the counterclaims in their entirety. Further, the Court 

need not address what remedies are appropriate at this time given that it has only determined that 

the parties have pled sufficient claims and counterclaims to survive a motion to dismiss. As such, 

to determine what remedies a party is entitled to at this juncture would constitute an advisory 

opinion. Plaintiffs are not precluded from raising this argument at a later time if WHRL succeeds 

on either Count III or Count IV of its counterclaims.13

B. Developer Defendants’ Motion to Strike Plaintiffs’ Demand for a Jury Trial 

By separate motion, Developer Defendants request that the Court strike Plaintiffs’ demand 

for a jury trial in light of the “Waiver of Jury Trial” provision of the lease agreements that provides:

Landlord and Tenant hereby waive all right to trial by jury in any claim, action, 

proceeding or counterclaim by either Landlord or Tenant against the other 

pertaining to any matters arising out of or in any way connected with this Lease, 

the relationship of Landlord and Tenant, or Tenant’s use of the Premises.

Compl, Ex. A at 23; id., Ex. C at 21; id., Ex. D at 31. Developer Defendants argue that all of 

Plaintiffs’ claims arise out of or concern Plaintiffs’ assertion that they have a valid leasehold 

interest in the property and, accordingly, Plaintiffs are bound by the jury trial waiver. Plaintiffs 

raise a host of arguments in response to Developer Defendants’ request which the Court declines 

to reach at this time. As previously discussed, the Court has yet to determine whether or not the 

lease agreements are valid and binding on the parties at this time in light of the ambiguity in 

Provision 38.E. Consistent with the Court’s ruling on a host of other issues raised by the parties, 

the Court shall decline to determine at this juncture whether or not Plaintiffs are entitled to a jury 

 13 To the extent that Plaintiffs argue that WHRL has not sufficiently alleged facts 

supporting the materiality of the alleged breaches, the Court has determined that WHRL has 

sufficiently pled counterclaims to survive a motion to dismiss as described above. See Section 

III.A.2.
21

trial or whether they have waived that right. Rather, it is the Court’s view that this determination, 

if necessary, is best made once the parties’ rights and claims are more fully ascertained on an 

expanded factual record. Accordingly, the Court shall deny without prejudice Developer 

Defendants’ request that the Court strike Plaintiffs’ jury trial demand. Developer Defendants are 

not precluded from raising this issue at a later time, if necessary, in advance of trial.

C. Defendants’ Motion to Set a Rule 16 Initial Scheduling Conference

Finally, Defendants request that this Court set this matter for an Initial Scheduling 

Conference and Plaintiffs filed a related motion requesting leave to file a surreply to Defendants’ 

pending motion. The Court shall set a date for Plaintiffs to file their Answer to Defendants’ 

counterclaims and, by separate order, the Court shall set this matter for an Initial Scheduling 

Conference. As such, the Court shall deny as moot both Defendants’ motion requesting that the 

matter be set for an Initial Scheduling Conference and Plaintiffs’ motion to file a surreply with 

respect to this request.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that WHRL has sufficiently pled its 

counterclaims and DENIES Plaintiffs’ [61] Motion to Dismiss Wharf Horizontal REIT 

Leaseholder LLC’s Amended Counterclaims. The Court also DENIES WITHOUT PREJUDICE 

Developer Defendants’ [58] Motion to Strike Plaintiffs’ Demand for Jury Trial as it has not yet 

determined the parties’ rights, if any, pursuant to the terms of the lease agreements at issue. 

Finally, the Court DENIES AS MOOT Defendants’ [57] Motion to Set a Rule 16 Initial Scheduling 

Conference and DENIES AS MOOT Plaintiffs’ [62] Motion for Leave to File a Surreply to 

Developer Defendants’ Reply in Further Support of their Motion to Set a Rule 16 Initial 

Scheduling Conference as the Court shall set an Initial Scheduling Conference by separate order.
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 An appropriate Order accompanies this Memorandum Opinion. 

 /s/

COLLEEN KOLLAR-KOTELLY 

United States District Judge