United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, United States District Judge
Wharf, Inc., (‘The Wharf”), BRW, Inc.
(“Captain White”), and Salt Water Seafood, Inc.
(“Salt Water”) (collectively, the
“Plaintiffs”) filed suit on July 23, 2015,
against the District of Columbia (“the
District”), Hoffman-Madison Waterfront, LLC
(“HMW”) and Wharf Horizontal Reit Leaseholder,
LLC (“WHRL”) (with HMW and WHRL are collectively
referred to as the “Initial Developer
Defendants”). See generally Compl, ECF No.
. Plaintiffs alleged that the Initial Developer Defendants
violated the terms of the Plaintiffs' lease agreements,
and further that the District violated the Takings Clause of
the Fifth Amendment by impeding access to the property leased
by Plaintiffs at the Southwest Waterfront in the District of
Initial Developer Defendants moved to dismiss the Complaint
and Plaintiffs subsequently filed their First Amended
Complaint. See 8/6/2015 Mot. to Dismiss, ECF No.
; 1st Am. Compl., ECF No. . The District
and the Initial Developer Defendants then moved to dismiss
the First Amended Complaint. See 8/13/15 Initial
Developer Defs.' Mot. to Dismiss, ECF No. ; 8/19/15
Mot. to Dismiss by the District, ECF No. . This Court
denied both motions to dismiss in a  Memorandum Opinion
and  Order dated September 28, 2015. On March 29, 2016,
the Initial Developer Defendants filed their answers to the
Plaintiffs' First Amended Complaint, but Defendant WHRL
also filed a counterclaim alleging that Plaintiffs breached
their lease agreements and were unjustly enriched as a result
of WHRL's improvement of the premises. See
generally Answer and Counterclaim, ECF No. . On
February 12, 2017, WHRL made an unopposed motion for joinder
of an additional party, which was granted by the Court, with
the effect that Wharf Fish Market REIT Leaseholder LLC
(“WFMRL”) was added as a defendant and
counterclaim plaintiff. See Order, ECF No. .
April 26, 2017, Plaintiffs moved for leave to file a Second
Amended Complaint, which was consented to by the District,
unopposed by the three Developer Defendants, and granted by
the Court. See April 26, 2017 Minute Order.
Plaintiffs'  Second Amended Complaint added the
following Defendants: Wharf District GP Joint Venture LLC
(“WDGJV”); Wharf Horizontal Reit, LLC
(“WHR”); Hoffman-Struever Waterfront, LLC
(“HSW”); and Wharf District Joint Venture, L.P.
(“WDJV”) (collectively, the “New Developer
Defendants”). On May 9, 2017, these New Developer
Defendants filed a  Motion to Dismiss, which is presently
pending before this Court. Upon consideration of the
pleadings,  the relevant legal authorities, and the
record as a whole, the Court HOLDS IN ABEYANCE the New
Developer Defendants'  Motion to Dismiss until such
time as the Plaintiffs file a Third Amended Complaint.
case concerns the Municipal Fish Market located at 1100 Maine
Avenue, S.W., Washington, D.C. (“Municipal Fish
Market” or “the Market”). 2nd
Am. Compl. ¶ 1. Plaintiffs run three seafood businesses
in the Municipal Fish Market and bring this action as alleged
lessees of property located within the Market. Id.
¶ 2. As previously noted, Plaintiffs initially named as
defendants: 1) the District; 2) HMW; 3) WHRL; and 4) WRMRL
was added as a defendant by WHRL. Plaintiffs' Second
Amended Complaint also names WDGJV, WHR, HSW, and WDJV as
defendants. See 2nd Am. Compl.
¶¶ 1, 23-29, 58 (noting that all the Developer
Defendants are “affiliated” entities and further,
that the District assigned Plaintiffs' leases to the
Developer Defendants, acting through WHRL, which in turn
assigned the leases to WFMRL.) Plaintiffs allege that all of
the Developer Defendants breached the terms of their lease
agreements and otherwise interfered with their use of the
leased property. See generally Id. ¶¶
75-155. The commercial leases at issue are: the agreement
entered into by The Wharf and the District dated July 12,
2000; the agreement entered into by Captain White and the
District dated July 12, 2000; and the agreement originally
entered into by Pruitt's Seafood, Inc. and the District,
and subsequently assumed by Salt Water (then doing business
as W.D., Inc.) from DNM Seafood, Inc. on March 20, 2014, with
the consent of then-lessor, the District. 2nd Am.
Compl. ¶¶ 44, 46, 52.
their Second Amended Complaint, Plaintiffs include three
claims against the District, including two Fifth Amendment
Takings Clause claims (Counts I and II) and a violation of
due process claim (Count III). Plaintiffs also raise eight
claims against all of the Developer Defendants: declaratory
judgment (Count IV); specific performance and injunctive
relief based on breach of lease (Count V); breach of lease
(Count VI); breach of covenant of good faith and fair dealing
(Count VII), trespass and conversion (Count VIII); nuisance
(Count IX); tortious interference with prospective business
advantage (Count X); and unjust enrichment (Count XI).
Treating the Plaintiffs' Opposition as a Motion to
Developer Defendants have moved to dismiss the
Plaintiffs' Second Amended Complaint on grounds that the
Complaint fails to state a claim pursuant to Fed.R.Civ.P.
12(b)(6). More specifically, the New Developer Defendants
argue that although the Plaintiffs have alleged that the New
Developer Defendants are “affiliated” with the
Initial Developer Defendants, “[t]he four numbered
allegations that make this “affiliated” claim set
forth not one additional fact regarding the alleged
affiliation.” Defs.' [92-1] Memo. in support of
Mot. to Dismiss at 2.Furthermore, “none of the allegations
set forth in the remainder of the [Plaintiffs']
forty-nine page Second Amended Complaint contains even one
more specific reference to any of these entities.”
Id. The New Developer Defendants analyze several
cases that address the standard for piercing the corporate
veil pursuant to an alter ego theory before concluding that
Plaintiffs' “conclusory allegations” do not
satisfy this standard, and thus, the Second Amended Complaint
should be dismissed as it pertains to the New Developer
Defendants. See generally Defs.' Memo in support
of Mot. to Dismiss at 5-10.
to the Motion to Dismiss, the Plaintiffs do not address any
of the case law cited by the New Developer Defendants but
instead focus on an Organizational Chart to describe the
interconnectedness between the various Developer Defendants.
See Pls.'Opp'n at 6, 9; Pls.' Opp'n,
Ex. A (Organizational Chart). Plaintiffs also reference a
Land Disposition Agreement, which allegedly
“demonstrates the extent to which HSW acting in its
capacity as Developer, exercises direction and control over
the affiliated entities in its corporate chain.”
See Pls.' Opp'n at 7-8; Pls.' Opp'n,
Ex. B (Land Disposition Agreement). Furthermore, Plaintiffs
refer to a Certificate of Limited Partnership of WDJV
obtained from the Secretary of State of Delaware to highlight
the relationship between HSW, WDJV, WDGPJV and HMW, and to
allege that Lamont Hoffman, an individual, acted on behalf of
several of the entities. See Pls.' Opp'n at
8; Pls' Opp'n, Ex. C (Certificate of Limited
Partnership). Plaintiffs explain that “[t]he Newly
Named Defendants were added to this case because, pursuant to
this Court's order, the parties exchanged organizational
charts [and] [t]he Developer Defendants' organizations
chart showed a web of entities that is responsible for the
Southwest Waterfront development.” Pls.' Opp'n
at 9. In their Reply, however, the New Developer Defendants
argue that common ownership among entities is not enough to
state a viable claim for alter ego liability. Defs.'
Reply at 4-6.
contend that “[t]o the extent that alter ego
allegations concerning the Newly named Defendants is deemed
necessary, those allegations should await discovery, or
Plaintiffs should be given leave to advance those
allegations.” Pls.' Opp'n at 5. The New
Development Defendants argue that Plaintiffs cannot rely on
the prospect of obtaining information through discovery in
order to meet their pleading obligations. Defs.' Reply at
6-7. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(Although “Rule 8 marks a notable and generous
departure from the hyper-technical, code-pleading regime of a
prior era [ ] it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”)
Plaintiffs conclude their Opposition by requesting leave to
amend their complaint “[s]hould the Court find that
Plaintiffs need to state that the Newly Named Defendants
often share addresses, directors, and officers, and have
signed some of the foundational agreements with the District
of Columbia authorizing construction on the Fish
Market.” Pls.' Opp'n at 9.
Court is inclined to consider Plaintiffs' request to
amend their complaint; however, the Court notes that Plaint
iffs did not attach t o t he ir O p p o sit io n a copy of
any proposed Third Amended Complaint. Pursuant to LCvR 7(i),
“[a] motion for leave to file an amended pleading shall
be accompanied by an original of the proposed pleading as
amended.” A “bare request in an opposition to a
motion to dismiss [ ] without any indication of the
particular grounds on which the amendment is sought” is
not a motion to amend within the contemplation of
Fed.R.Civ.P. 15 (a). Confederate Mem'l Ass'n,
Inc. v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993);
see also Kim v. U.S., 840 F.Supp.2d 180, 189-90
(D.D.C. 2012), aff'd, 707 F.3d 335 (D.C. Cir.
2013) (A mere statement by the plaintiffs in an opposition to
a motion to dismiss, without any detail, should not be
treated as a motion to amend).
instant case, however, Plaintiffs not only request allowance
to amend their complaint but they also indicate that the
basis for amending their complaint is to add claims against
new defendants who are alleged to be affiliates or alter egos
of existing defendants, and they note additional proposed
facts relevant to the new defendants, with such facts largely
drawn from the three exhibits attached to the Opposition.
Accordingly, Plaintiffs' failure to attach a proposed
Third Amended Complaint is not a reason to deny their request
to amend. See Rozenzweig v. Claimfox, Inc., 2:16
-cv-01849 (ADS)(AYS), 2017 WL 1458742, at *4-5 (E.D.N.Y. Apr.
22, 2017) (finding that a failure to include a proposed
amended complaint was not fatal to a motion for leave to
amend where the memorandum of law adequately explained the
basis for the amendment, included proposed factual additions,
and incorporated several exhibits containing additional
facts). This Court will therefore consider Plaintiff's
request to amend their complaint and apply the applicable
legal standard thereto.
Applying the Legal Standard ...