1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CHRISTINA RONALDSON,

Plaintiff,

v.

NATIONAL ASSOCIATION OF HOME 

BUILDERS,

Defendant.

Civil Action No. 19-1034 (CKK)

Memorandum Opinion

(November 18, 2020)

In her Amended Complaint, Ms. Christina Ronaldson (“Plaintiff”) asserts claims against 

her former employer, National Association of Home Builders (“NAHB” or “Defendant”), under 

the District of Columbia Wage Payment and Collection Law, D.C. Code §§ 32–1301 et seq., 

(“DCWPCL”), and the common law doctrine of unjust enrichment. As discussed herein, Ms. 

Ronaldson’s claims focus on the size of her 2016 incentive commission from NAHB and the 

method by which NAHB calculated that incentive commission. NAHB has now moved to dismiss 

Ms. Ronaldson’s DCWPCL and unjust enrichment claims as a matter of law under Federal Rule 

of Civil Procedure 12(b)(6), or, in the alternative, Federal Rule of Civil Procedure 12(c). See 

Def.’s Mot., ECF No. 43. 

Upon consideration of the briefing, the relevant authorities, and the record as a whole,

1 the 

Court GRANTS NAHB’s motion as to Ms. Ronaldson’s DCWPCL claim in Count I of the 

 1 The Court’s consideration has focused on the following briefing and material submitted by the parties:

• Am. Compl., ECF No. 41;

• Def.’s Mem. of Law in Supp. of Mot. to Dismiss, or in the Alternative, for J. on the Pleadings

(“Def.’s Mot.”), ECF No. 43;

• Pl.’s Mem. in Opp’n to Def.’s Mot. (“Pl.’s Opp’n”), ECF No. 90;

• Def.’s Reply to Pl.’s Opp’n (“Def.’s Reply”), ECF No. 47; and,

• Pl.’s Sur-Reply to Def.’s Reply (“Pl.’s Sur-Reply”), ECF No. 64.
2

Amended Complaint and DISMISSES that claim WITH PREJUDICE. See Am. Compl. ¶¶ 37–

53. The Court, however, DENIES NAHB’s motion to dismiss Ms. Ronaldson’s claim for unjust 

enrichment in Count II of the Amended Complaint. See id. ¶¶ 54–59.

I. BACKGROUND

“NAHB is a non-profit organization with over 140,000 members that engages in wideranging activities with the overall purpose of promoting home ownership and home building.” 

Am. Compl. ¶ 1. NAHB’s “members are responsible for approximately 80% of new single-family 

home construction annually in the United States.” Id. Of note in this case, NAHB generates 

revenue “in a variety of ways which include . . . membership dues and contributions, 

advertisements in NAHB publications and at NAHB events, licenses of NAHB logos and 

intellectual property, and sponsorships of NAHB events and programs.” Id. ¶ 2.

Beginning in December 2009, Christina Ronaldson began working at NAHB “as the 

Director of NAHB’s revenue-generating Affinity Programs.” Id. ¶ 1; see also id. ¶ 16. “The 

Affinity Programs generated revenue for NAHB by payments of flat fees and percentages of sales 

of products and services through [NAHB] partnerships.” Id. ¶ 3. As director of the Affinity 

Programs, “Ms. Ronaldson was responsible for generating revenue for NAHB by creating national 

partnerships between NAHB and corporations with significant financial interests in the home 

building industry by marketing products and services to NAHB members, including builders, 

contractors and sub-contractors, and banks.” Id. Plaintiff alleges that she was successful in her

role as the Affinity Programs director. In particular, she alleges that NAHB gave her a positive 

employee review in 2015, in recognition of “the complexity of the programs she manage[d] and 

of the efforts she put forth to ensure their success.” Id. ¶ 18. Plaintiff’s 2015 NAHB review also 
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noted that she “work[ed] diligently with [NAHB] affinity vendors” and promoted “a professional 

NAHB image.” Id. 

Throughout her tenure with NAHB, Plaintiff’s compensation “comprised . . . a base salary 

and an Incentive Compensation Plan” (the “Incentive Plan”). Id. ¶ 4; see also id. ¶ 16. Under her

annual Incentive Plans, Plaintiff had the opportunity to receive an incentive commission “based 

on a formula tied to Affinity Department annual net revenue goals set by NAHB in advance of 

each year.” Id. ¶ 4. More specifically, NAHB would pay Plaintiff an incentive commission “when 

Affinity Programs net revenue” for the prior year “reached 90% of its projected target,” and an 

even larger commission “when net revenue reached or exceeded 100% of NAHB’s projected 

target” for the year. Id. ¶ 22; see also Pl.’s Opp’n, Att. C at Ex. I (2016 Incentive Plan). In 

calculating these annual revenue totals, NAHB allegedly employed an “accrual-based” accounting

system, which recognized revenue for the fiscal year “in which the income is earned,” irrespective 

of whether the customer had paid for the product or service rendered in that same fiscal year. Id. 

¶¶ 24–25.

Plaintiff’s present claims against NAHB arise from a dispute regarding the calculation of 

Plaintiff’s 2016 incentive commission. In their motion papers, both Plaintiff and Defendant have 

attached a copy of the operative 2016 Incentive Plan, which states that “[m]anagement reserves 

the right to amend, modify, or discontinue the Incentive Plan at any time.” Pl.’s Opp’n, Att. C at 

Ex. I (2016 Incentive Plan); see also Def.’s Mot., Ex. 1 (2016 Incentive Plan). Nonetheless, 

Plaintiff alleges that her 2016 incentive commission was too low, because NAHB did not calculate 

her commission based upon the “gross revenue of approximately $2,758,562.00 that [she] 

generated for Affinity Programs in 2016, but rather a lower figure.” Am. Compl. ¶ 42. Namely, 

Plaintiff alleges that NAHB did not account for the sales revenue she generated in 2016 through 
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an annual royalty payment received from Lowe’s for the use of NAHB intellectual property. See 

id. ¶¶ 23, 45. Plaintiff asserts that the 2016 revenue from this Lowe’s sale alone was no less than 

$879,028.80, see id. ¶ 24, and alleges that her 2016 incentive commission from the Lowe’s sale, 

by itself, should have totaled at least $46,149.01, see id. ¶ 47. According to Plaintiff, however, 

NAHB did not consider the Lowe’s sale when calculating her 2016 incentive commission. See id. 

¶ 45. In sum, Plaintiff alleges that her 2016 incentive commission, received on June 27, 2017, did 

not reflect the full value of the revenue she had generated for NAHB in 2016. See id. ¶ 49. 

NAHB ultimately terminated Plaintiff on August 18, 2017 because “she supposedly did 

not communicate effectively with NAHB staff and vendors.” Id. ¶ 31. Plaintiff, however, alleges

that her termination was pretextual. See id. ¶¶ 31–36. And even after her termination, Plaintiff 

allegedly did not receive any additional incentive commission payments to reflect the revenue 

earned from the 2016 Lowe’s sale. Id. Consequently, Plaintiff now alleges that “[b]y failing to 

pay [her] the incentive bonus or commission due her on the Lowe’s sale in 2016 alone in an amount 

not less than $46,149.01, [NAHB] violated the [DCWPCL].” Id. ¶ 50. Plaintiff also asserts a 

common law claim for unjust enrichment. Therein, she alleges that NAHB unjustly retained a 

financial benefit from the 2016 revenue she generated and, correspondingly, withheld a fair 

commission from her on that revenue. See id. ¶¶ 54–59.

In turn, NAHB has now moved to dismiss Plaintiff’s operative complaint under Federal 

Rule of Civil Procedure 12(b)(6), or, in the alternative, Federal Rule of Civil Procedure 12(c), 

arguing that Plaintiff’s claims for relief under the DCWPCL and the doctrine of unjust enrichment

both fail as a matter of law. See Def.’s Mot. at 1–2. The briefing on Defendant’s motion, which 

includes Plaintiff’s sur-reply briefing, see Pl.’s Sur-Reply, ECF No. 64, has now closed. 

Accordingly, Defendant’s motion is now ripe for this Court’s review.
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II. LEGAL STANDARD

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 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957). Although 

“detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to 

provide the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than labels and 

conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. 

at 555. Instead, a complaint must contain sufficient factual matter, accepted as true, to “state a 

claim to relief that is plausible on its face.” Id. 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 

Twombly, 550 U.S. at 556).

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

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

reasonable factual inferences drawn from well-pled factual allegations. Erickson v. Pardus, 551 

U.S. 89, 93 (2007); In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 

914, 915 (D.D.C. 1994). However, a plaintiff must provide more than just “a sheer possibility that 

a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. Where the well-pled facts set forth in 

the complaint do not permit a court, drawing on its judicial experience and common sense, to infer 

more than the “mere possibility of misconduct,” the complaint has not shown that the pleader is 

entitled to relief. Id. at 679. Under Rule 12(b)(6), a court is limited to considering the facts alleged 

in the complaint, any documents attached to or incorporated in the complaint, matters of which a 
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court may take judicial notice, and matters of public record. See EEOC v. St. Francis Xavier 

Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); see also Vanover v. Hantman, 77 F. Supp. 2d 

91, 98 (D.D.C. 1999), aff’d, 38 Fed. App’x. 4 (D.C. Cir. 2002) (“[W]here a document is referred 

to in the complaint and is central to plaintiff’s claim, such a document attached to the motion 

papers may be considered without converting the motion to one for summary judgment.”).

Alternatively, “a movant is entitled to judgment on the pleadings under Rule 12(c) if it 

‘demonstrates that no material fact is in dispute and that it is entitled to judgment as a matter of 

law.’” Jimenez v. McAleenan, 395 F. Supp. 3d 22, 30 (D.D.C. 2019) (quoting Schuler v. 

PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1370 (D.C. Cir. 2008)). “Rule 12(c) may serve as 

an ‘auxiliary or supplementary procedural device to determine the sufficiency of the case before 

proceeding any further.’” Jimenez, 395 F. Supp. 3d at 30 (quoting 5C Charles A. Wright & Arthur 

Miller, Fed. Prac. & Proc. § 1367 (3d ed. 2019)). Where it does—as in the present case—the 

applicable “standard of review is ‘functionally equivalent’ to that for a Rule 12(b)(6) motion.” 

Jimenez, 395 F. Supp. 3d at 30 (quoting Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 130 (D.C. 

Cir. 2012) (explaining that “the requirements of Iqbal and Twombly . . . apply to a Rule 12(c) 

motion, which here is functionally equivalent to a Rule 12(b)(6) motion”)).

III. DISCUSSION

Defendant has moved to dismiss Plaintiff’s DCWPCL claim in Count I of the Amended 

Complaint, see Am. Compl. ¶¶ 37–53, as well as Plaintiff’s claim for unjust enrichment in Count 

II of the Amended Complaint, see id. ¶¶ 54–59. The Court will address each claim in turn.

A. Count I – D.C. Wage Payment and Collection Law

In Count I of the Amended Complaint, Plaintiff asserts a claim under the D.C. Wage 

Payment and Collection Law, D.C. Code §§ 32–1301 et seq., (“DCWPCL”). See Am. Compl. ¶¶ 
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37–53. “The DCWPCL establishes requirements regarding how and when employers must pay 

their employees’ wages [and] it establishes a framework for recovery against an employer who 

violates its provisions.” Molock v. Whole Foods Mkt., Inc., 297 F. Supp. 3d 114, 134 (D.D.C.

2018) (quotation omitted); see also Sivaraman v. Guizzetti & Assocs., Ltd., 228 A.3d 1066, 1071 

(D.C. 2020). In this case, Plaintiff specifically argues that § 13–1304 of the DCWPCL “provides 

[her] with [a] cause of action.” Pl.’s Opp’n at 11; see also Am. Compl. ¶¶ 37–53. Section 13–

1304 states that “[i]n case of a bona fide dispute concerning the amount of wages due, the employer 

shall give written notice to the employee of the amount of wages which he concedes to be due, and 

shall pay such amount . . . . ” D.C. Code § 32–1304.

Defendant argues, however, that Plaintiff’s DCWPCL claim must fail as a matter of law 

because the incentive commissions she disputes do not constitute “wages” within the meaning of 

the DCWPCL. See Def.’s Mot. at 4–5. In full, the DCWPCL expressly defines “wages” as:

[A]ll monetary compensation after lawful deductions, owed by an employer, 

whether the amount owed is determined on a time, task, piece, commission, or other 

basis of calculation. The term “wages” includes a: (A) Bonus; (B) Commission; (C) 

Fringe benefits paid in cash; (D) Overtime premium; and (E) Other remuneration 

promised or owed: (i) Pursuant to a contract for employment, whether written or 

oral; (ii) Pursuant to a contract between an employer and another person or entity; 

or (iii) Pursuant to District or federal law.

D.C. Code § 13–1301(3). Importantly, a “discretionary payment” does not constitute a “wage” 

under the DCWPCL because such payments “are not owed, but are given only by leave of the 

employer.” Dorsey v. Jacobson Holman, PLLC, 756 F. Supp. 2d 30, 36 (D.D.C. 2010) (emphasis 

added), aff’d, 476 F. App’x 861 (D.C. Cir. 2012). Whether a payment is “discretionary” turns on

“the conditions set for the award of such compensation” and if “the former employee was actually 
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entitled or owed the payment.” Rothberg v. Xerox Corp., Civ. No. 12-617 (BAH), 2016 WL 

10953882, at *16 (D.D.C. Feb. 3, 2016), aff’d, 709 F. App’x 1 (D.C. Cir. 2017).2 

Two recent decisions from this jurisdiction, which this Court finds persuasive, help 

elucidate the line of demarcation between discretionary payments and owed wages, cognizable 

under the DCWPCL. In Molock v. Whole Foods Mkt., Inc., 297 F. Supp. 3d 114 (D.D.C. 2018), 

Judge Amit Mehta considered whether a “Gainsharing program” for certain Whole Foods 

employees provided “wages” within the meaning of the DCWPCL. Id. at 119, 133–35. Under the 

Gainsharing program, Whole Foods allegedly “awarded bonuses to employees whose departments 

performed under budget by automatically distributing the surplus savings among the employees in 

that department.” Id. at 119. Upon review of the pleadings, Judge Mehta held that the plaintiffs 

in Molock stated a claim for lost “wages” under the DCWPCL, because they “sufficiently alleged 

that payment of a Gainsharing bonus was not subject to any employer discretion, but rather 

automatic and mandatory upon satisfaction of the condition that the department in which [the] 

[p]laintiffs were employed obtained a surplus.” Id. at 134 (emphasis added).

Conversely, Judge Royce Lamberth reached a different holding in Brady v. Liquidity 

Servs., Inc., No. 18-CV-1040 (RCL), 2018 WL 6267766 (D.D.C. Nov. 30, 2018), when addressing 

 2 Plaintiff notes that the trial court’s decision in Dorsey came before the definition of “wages” in § 13–

1301(3) of the DCWPCL was amended in 2013. See D.C. Law 20–61 § 2062(a); Pl.’s Opp’n at 14. But 

this fact does not undermine the viability of Dorsey’s holding that discretionary payments do not constitute 

wages under the DCWPCL. First, the amended definition of “wages” in the DCWPCL retains the 

requirement that a wage must be “owed by an employer.” D.C. Code § 13–1301(3) (emphasis added). 

Moreover, the courts in this jurisdiction that have addressed the DCWPCL’s amended definition of “wages” 

continue to recognize the rule that discretionary payments are not “owed” and are, therefore, not “wages” 

under the DCWPCL. See, e.g., Rothberg, 2016 WL 10953882, at *16, aff’d, 709 F. App’x 1 (D.C. Cir. 

2017) (applying Dorsey and finding that “no commission on [a] sale was ‘owed by an employer’ within the 

meaning of the [DCWPCL]”); Bartolo v. Whole Foods Mkt. Grp., Inc., 412 F. Supp. 3d 35, 49 (D.D.C. 

2019) (“Bonuses that are discretionary, and therefore not guaranteed compensation, do not fall under the 

definition of wages because they are not owed, but are given only by leave of the employer.”) (quotation 

omitted). Plaintiff has provided no authority to the contrary, and, as such, the Court finds no basis to deviate 

from the rule in Dorsey against discretionary payments constituting “wages” under the DCWPCL.
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a DCWPCL claim based on a bonus award allegedly owed to Mr. Daniel Brady by his former 

employer Liquidity Services, Inc. (“LSI”). There, Mr. Brady alleged that under the terms of his 

“offer letter,” he had earned a bonus in 2016 of approximately $62,000 based on “qualitative and 

quantitative measures established by LSI.” Id. at *1. Taking judicial notice of Mr. Brady’s offer 

letter, which was referenced in Mr. Brady’s complaint and “integral to his DCWPCL claim,” id.

at *4 n.1, Judge Lamberth observed that Mr. Brady’s “target bonus” was “paid annually based on 

objectives set between [Mr. Brady] and [his] manager,” id. at *4. And notably, Mr. Brady’s offer 

letter expressly stated that “any provision[ ] contained herein may be modified and/or revoked 

without notice.” Id. Ultimately, Judge Lamberth found that Mr. Brady had not stated a valid 

DCWPCL claim for his withheld bonus because “[e]ven if the Court were to find that the offer 

letter constituted a binding agreement, the bonus language in that letter appear[ed] discretionary 

and therefore not owed.” Id.

In this case, Plaintiff ties her DCWPCL claim for lost “wages” to the 2016 incentive 

commission of $26,010.86 she received on June 27, 2017, see Am. Compl. ¶¶ 21–30, alleging that 

this payment was not a proper “Incentive Plan commission on all affinity sales made by her in 

2016, among them the Lowe’s sale for that year,” id. ¶ 29. To that end, both parties have attached 

an identical copy of Plaintiff’s 2016 Incentive Plan to their motion papers. See Def.’s Mot., Ex. 1

(2016 Incentive Plan); Pl.’s Opp’n, Att. C at Ex. I (2016 Incentive Plan).

3

 In relevant part, this 

 3 The Court may take judicial notice of the 2016 Incentive Plan without converting Defendant’s Rule 

12(b)(6) motion into a motion for summary judgment. When considering a motion to dismiss, courts may 

take judicial notice of documents “referred to in the complaint and integral to [the] claim” asserted, 

particularly where the document’s “authenticity is not disputed.” Kaempe v. Myers, 367 F.3d 958, 965 

(D.C. Cir. 2004); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Here, 

the Amended Complaint refers to the 2016 Incentive Plan on multiple occasions, see, e.g., Am. Compl. ¶¶ 

4, 9, 22, 29, 35, 41, and both parties have separately appended that document in identical form to their 

motion papers, see Def.’s Mot., Ex. 1; Pl.’s Opp’n, Att. C at Ex. I. Moreover, the Court is not persuaded 

by Plaintiff’s attempt to challenge the applicability or accuracy of the 2016 Incentive Plan. See Pl.’s Opp’n 

at 13–14. First, Plaintiff herself cites directly to the 2016 Incentive Plan in her opposition brief. See id. at 
10

2016 Incentive Plan states that the “purpose of this plan is to compensate for the attainment of net 

revenue targets of Affinity Program net revenue,” but it also clearly states that “[m]anagement 

reserves the right to amend, modify or discontinue this Incentive Plan at any time.” Id. Given this 

plain language in the prefatory section of Plaintiff’s 2016 Incentive Plan, the Court concludes that

any payments thereunder were discretionary. See Dorsey, 756 F. Supp. 2d at 36. 

Indeed, this discretionary language is comparable to the language Judge Lamberth 

evaluated in the offer letter at issue in Liquidity Services Inc, before dismissing the DCWPCL

claim in that case. See Liquidity Servs., Inc., 2018 WL 6267766, at *4 (“Furthermore, the offer 

letter states that ‘any provision[ ] contained herein may be modified and/or revoked without 

notice.’”). Equally as important, the Court cannot conclude that Plaintiff’s receipt of a 2016 

incentive commission from NAHB was “automatic and mandatory,” Molock, 297 F. Supp. 3d at 

134, when management at NAHB expressly reserved the right to “amend, modify, or discontinue 

the Incentive Plan at any time,” Pl.’s Opp’n, Att. C at Ex. I (2016 Incentive Plan). Consequently, 

the Court concludes that any commission Plaintiff received under her 2016 Incentive Plan was a 

“discretionary” payment and, therefore, did not constitute a “wage” within the meaning of the 

DCWPCL. D.C. Code § 13–1301(3). As such, Plaintiff’s DCWPCL claim for lost wages under 

her 2016 Incentive Plan fails as a matter of law. See Dorsey, 756 F. Supp. 2d at 36 (dismissing 

DCWPCL claim based on discretionary payment); Liquidity Servs., Inc., 2018 WL 6267766, at *4 

(same).

 

14. And notably, Plaintiff included that 2016 Incentive Plan in her motion papers along with an affidavit 

from NAHB’s Executive Vice President and Chief Financial Officer, swearing to its veracity. See Pl.’s 

Opp’n, Att. C (Decl. of E. Ramage). As such, the Court accepts the authenticity of the 2016 Incentive Plan, 

attached by Plaintiff herself. See id.
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Finally, the Court notes that because Plaintiff’s DCWPCL claim fails on the ground that 

Plaintiff’s 2016 incentive commission was discretionary, the Court need not reach the parties’ 

additional arguments regarding the size and calculation of that incentive commission. For 

example, the parties dispute whether the DCWPCL permits Plaintiff to challenge the disputed

amount of her 2016 incentive commission. See Pl.’s Sur-Reply at 2 (citing Fudali v. Pivotal Corp., 

310 F. Supp. 2d 22, 27 (D.D.C. 2004)). But, as discussed above, Plaintiff’s discretionary incentive 

commission was not a “wage owed,” and is not, therefore, cognizable under the DCWPCL, 

regardless of whether that statute permits the recovery of disputed wages, as Plaintiff asserts. See

Pl.’s Opp’n at 11 (refuting the argument that an “employer must pay only the undisputed wages to 

comply with the Act”) (citing Def.’s Mot. at 10). Relatedly, Plaintiff argues at some length about 

the revenue NAHB should have recognized in 2016 under an accrual-based accounting system. 

See Pl.’s Opp’n at 18. Here again, however, even if NAHB had recognized additional 2016 

revenue under an accrual-based accounting model, any commission for Plaintiff on that revenue 

and under her 2016 Incentive Plan would still have been discretionary and, therefore, not a

cognizable “wage” under the DCWPCL. Accordingly, the Court need not resolve these matters to 

dispose of Plaintiff’s DCWPCL claim as a matter of law.

For the reasons identified herein, the Court GRANTS Defendant’s motion regarding Count 

I of the Amended Complaint and DISMISSES Count I of the Amended Complaint WITH 

PREJUDICE.

4

 

 4 As discussed above, Plaintiff’s DCWPCL claim turns on her 2016 incentive commission. But to the extent 

Plaintiff asserts a DCWPCL claim for commissions allegedly due to her on the basis NAHB’s 2017 fiscal 

year revenues, such a claim falls short because Plaintiff has alleged no facts in the Amended Complaint that 

plausibly indicate that NAHB “owed” her any incentive commission on its 2017 revenues. D.C. Code § 

13–1301(3). For example, Plaintiff has not alleged that NAHB offered her an Incentive Plan providing for 

commissions on final 2017 target revenues. And importantly, the Amended Complaint makes clear that 

NAHB terminated Plaintiff on August 18, 2017, shortly after she received her incentive commission for the 

2016 fiscal year and well before any 2017 revenue calculations would have been finalized. See Am. Compl. 
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B. Count II – Unjust Enrichment

In Count II of the Amended Complaint, Plaintiff asserts a common law claim for unjust 

enrichment, also predicated on NAHB’s alleged failure to provide her with an adequate incentive 

commission relative to the company’s 2016 revenue totals. See Am. Compl. ¶¶ 54–59. Under 

District of Columbia law, unjust enrichment occurs where: “(1) the plaintiff conferred a benefit on 

the defendant; (2) the defendant retains the benefit; and (3) under the circumstances, the 

defendant’s retention of the benefit is unjust.” Smith v. Rubicon Advisors, LLC, 254 F. Supp. 3d 

245, 249 (D.D.C. 2017) (quoting Fort Lincoln Civic Ass’n v. Fort Lincoln New Town Corp., 944 

A.2d 1055, 1076 (D.C. 2008)). “The doctrine applies ‘when a person retains a benefit (usually 

money) which in justice and equity belongs to another.’” Krukas v. AARP, Inc., 376 F. Supp. 3d 

1, 44 (D.D.C. 2019) (quoting Falconi-Sachs v. LPF Senate Square, LLC, 142 A.3d 550, 556 (D.C. 

2016)). 

At this stage of the litigation, the Court finds that Plaintiff has plausibly stated a claim for 

unjust enrichment. First, the Amended Complaint specifically alleges that Plaintiff provided 

services to NAHB that resulted in a royalty payment from Lowe’s in 2016, valued at approximately 

$879,028.80. See Am. Compl. ¶¶ 23–24. Plaintiff further alleges that Lowe’s made payments to 

NAHB on this sale in 2017, and that NAHB subsequently retained the revenue from this sale. See 

id. ¶ 25. Moreover, Plaintiff alleges that NAHB withheld from her a full commission payment of 

approximately $46,000 for the 2016 Lowe’s sale. Id. ¶ 9. Instead, NAHB allegedly utilized that 

extra commission revenue for internal business purposes. See id. ¶ 57. At the pleading stage, 

these factual allegations plausibly satisfy the first two elements of unjust enrichment: Plaintiff 

 

¶ 49. Given this uncertainty, any allegation that NAHB “owed” Plaintiff an incentive commission for 

revenue in 2017 is too speculative to plausibly state a claim under the DCWPCL for lost “wages.” See D.C. 

Code § 13–1301(3); Twombly, 550 U.S. at 555–56. 
13

allegedly conferred a monetary benefit upon NAHB through her services and, in turn, NAHB 

allegedly retained the monetary value of those services by withholding an adequate commission 

payment from her. See Lannan Found. v. Gingold, 300 F. Supp. 3d 1, 30 (D.D.C. 2017). 

Next, Plaintiff has also plausibly alleged that NAHB’s “retention of th[is] benefit [was]

unjust.” Rubicon Advisors, LLC, 254 F. Supp. 3d at 249. Here, Plaintiff alleges that, pursuant to 

the 2016 Incentive Plan, see Def.’s Mot., Ex. 1 (2016 Incentive Plan), she expected to receive an 

incentive commission based upon all Affinity Programs sales revenue earned for NAHB in 2016, 

including the revenue from the 2016 Lowe’s sale, see, e.g., Am. Compl. ¶¶ 9, 40. Plaintiff alleges, 

however, that her 2016 incentive commission from NAHB did not reflect the revenue she 

generated for NAHB from the 2016 Lowe’s sale. See id. ¶ 49. Moreover, Plaintiff asserts that 

NAHB then terminated her “in bad faith” in August 2017, allowing NAHB to “wrongfully claim 

that she was ineligible” for any commissions on sales revenue NAHB might have accounted for in 

2017. Id. ¶ 58. At the pleading stage, these factual allegations are sufficient to plausibly show 

that NAHB “unjustly” retained money that should have flowed to Plaintiff as compensation for 

her services generating revenue for NAHB. See JSC Transmashholding v. Miller, 70 F. Supp. 3d 

516, 523 (D.D.C. 2014) (refusing to entertain factual arguments regarding the “alleged injustice” 

when addressing an unjust enrichment claim at the pleading stage). Accordingly, Plaintiff has 

sufficiently pled a claim for unjust enrichment that survives Defendant’s present motion to dismiss.

On the issue of unjust enrichment, a few final points merit attention. First, the plausibility 

of Plaintiff’s unjust enrichment claim at the pleading stage is not inconsistent with the Court’s 

finding that NAHB did not “owe” Plaintiff any commission under the discretionary terms of the 

2016 Incentive Plan. See D.C. Code § 13–1301(3). Indeed, Defendant argues in a similar vein

that because “the 2016 ICP does not support [Plaintiff’s] claim of entitlement,” she cannot state a 
14

claim for unjust enrichment against NAHB. Def.’s Reply at 14. But the fact that NAHB was not 

obliged under the 2016 Incentive Plan to confer an incentive commission upon Plaintiff, does not

necessarily defeat Plaintiff’s unjust enrichment claim at the pleading stage. To the contrary, the 

unjust enrichment doctrine operates “in the absence of a contractual arrangement” so as to “provide 

relief in equity where circumstances are such that justice warrants a recovery as though there had 

been a promise.” Falconi-Sachs, 142 A.3d at 556 (quotation omitted). The doctrine does not turn 

on a formal obligation between two parties, but instead more broadly “depends on whether it is 

fair and just for the recipient to retain the benefit” conferred. 4934, Inc. v. D.C. Dep’t of 

Employment Servs., 605 A.2d 50, 56 (D.C. 1992). As such, the fact that the 2016 Incentive Plan

did not compel NAHB to provide Plaintiff with a commission for the revenue she generated from 

the 2016 Lowe’s sale, does not mean, in and of itself, that Plaintiff’s labor in generating that alleged 

revenue did not confer value upon NAHB, which NAHB unjustly withheld from Plaintiff. 

Lastly, the Court takes note of Defendant’s argument that Plaintiff’s unjust enrichment

claim fails because Plaintiff did not actually confer a “benefit” upon NAHB. See Rubicon 

Advisors, LLC, 254 F. Supp. 3d at 249. Specifically, Defendant asserts that any “revenue generated 

by NAHB’s Affinity Program is based upon the efforts of its members” and their “purchases of 

goods and services,” not Plaintiff’s own labor. Def.’s Mot. at 9; see also Def.’s Reply at 13. But 

this argument rests on Defendant’s own assertion that Plaintiff’s allegations regarding the value of 

her services are inaccurate, such as Plaintiff’s factual allegation that in 2016 she generated 

$879,028.80 in revenue for NAHB by facilitating annual royalty payments from Lowe’s “for the 

use of NAHB intellectual property.” Am. Compl. ¶ 6. At the pleading stage, the Court’s job is 

not to probe the accuracy of such factual allegations, but instead to determine whether this “factual 

matter, accepted as true,” is sufficient “to ‘state a claim to relief that is plausible on its face.’” 
15

Long Beach Sec. Corp. v. Nat’l Credit Union Admin. Bd., 315 F. Supp. 3d 129, 143 (D.D.C. 2018)

(emphasis added) (quoting Iqbal, 556 U.S. at 678). Consequently, Defendant’s argument that 

Plaintiff did not confer any benefit upon NAHB, as a factual matter, is unavailing at the pleading 

stage.

For the reasons set forth above, the Court finds that Plaintiff has sufficiently pled a claim 

for unjust enrichment against NAHB. Accordingly, the Court DENIES Defendant’s motion to 

dismiss Plaintiff’s claim for unjust enrichment in Count II of the Amended Complaint.

IV. CONCLUSION

For the reasons set forth in this Memorandum Opinion, the Court GRANTS Defendant’s 

motion as to Plaintiff’s DCWPCL claim in Count I of the Amended Complaint and DISMISSES

that claim WITH PREJUDICE. See Am. Compl. ¶¶ 37–53. The Court, however, DENIES

Defendant’s motion to dismiss Plaintiff’s claim for unjust enrichment in Count II of the Amended 

Complaint. See id. ¶¶ 54–59. An appropriate Order accompanies this Memorandum Opinion.

Date: November 18, 2020 _______/s/_______________________ 

COLLEEN KOLLAR-KOTELLY

United States District Judge