United States District Court, District of Columbia
A. HOWELL Chief Judge.
Indah Wilson alleges that she has worked for over ten years
at the restaurant Oohhs & Aahhs
(“Restaurant”) in Washington, D.C., without ever
being paid a wage. Compl. ¶¶ 1, 7, 15, ECF No. 1.
The plaintiff brings claims for minimum and overtime wages
under the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201 et seq. and the D.C. Wage Payment
Act (“WPA”), D.C. Code § 32-1301 et
seq., and common law fraud against her alleged
employers, defendants On the Rise Enterprises, LLC
(“OTR”), Oji. A. Abbott, and Dominique R. Brooks.
Id. ¶¶ 25-44, 66-74. Alternatively, the
plaintiff seeks a declaration that she is entitled to a fifty
percent stake in the Restaurant, an injunction requiring the
defendants to convey her such stake, and an accounting of all
of the Restaurant's revenues and expenses since its
opening. Id. ¶¶ 45- 65. Pending before the
Court are the defendants' motions to dismiss on grounds
that the plaintiff's claims are time-barred or otherwise
not cognizable. See Abbott & OTR's Mot.
Dismiss, ECF No. 8. Defendant Brooks also asserts that he is
not properly a defendant to this action. Brooks's Mot.
Dismiss (“Brooks's Mot.”), ECF No. 16;
Brooks' Mem. Supp. Mot. (“Brooks' Mem.”)
at 2-3, ECF No. 16-1. For the reasons set out below, the
defendants' motions to dismiss are denied in part and
granted in part, without prejudice.
plaintiff, a Maryland resident, alleges that she
“founded the Restaurant along with her boyfriend,
Defendant Oji Abbott, ” Compl. ¶¶ 1, 2, and
then worked at the Restaurant for over ten years without
receiving a paycheck, in the belief that she “was an
owner of a fifty percent (50%) interest in the Restaurant,
” id. ¶¶ 2, 7, 46. The complaint
provides few details about the plaintiff's background,
such as her level of education or restaurant-related skills,
but she alleges that she “frequently and usually”
worked in excess of fifty hours per week while
“manag[ing] the day-to-day operations” and
“marketing” at the Restaurant. Id.
¶¶ 8, 50, 68. The plaintiff further alleges that
“[d]ue in significant part to [plaintiff's] efforts
to promote the Restaurant, ” id. ¶ 1, she
helped the Restaurant to grow in “popularity and
success, ” id. ¶ 10, and earn media
exposure in the Washington Post, Washingtonian
Magazine, and Food Network's “Diners,
Drive-Ins and Dives, ” id. ¶ 1. By
contrast to the plaintiff's role, “Abbott's
role in the Restaurant allowed him to exercise dominion and
control over the business records and organization and
structure of the Restaurant.” Id. ¶ 68.
allegedly incorporated Oohhs & Aahhs, Inc. in 2003
“to obtain permits and licenses for the
Restaurant.” Id. ¶ 5. “Abbott did
not inform [the plaintiff] of his use of this entity and did
not disclose [to her] the details of the entity . . .
.” Id. The plaintiff “did not ask to
inspect the initial paperwork establishing the Restaurant or
its ownership” due to “her trust in [Abbott] and
her unfamiliarity with the business and legal aspects of
establishing a restaurant.” Id. ¶ 4.
about May 3, 2012, “after the Restaurant had been
operating for nearly a decade, ” Abbott and his
“family member, ” defendant Brooks, established
OTR, without the plaintiff's knowledge, to “own and
operate the Restaurant.” Id. ¶¶ 3,
6. Although Brooks allegedly provided “start-up
money” for the Restaurant, he has played no
“active role” in the Restaurant's operation,
as he was imprisoned shortly after the Restaurant opened.
Id. ¶¶ 3, 11. The defendants “did
not include [the plaintiff] in the [LLC's] organizational
documentation.” Id. ¶ 6. At all relevant
times, the defendants “maintained exclusive control
over the financial and business records of the
Restaurant.” Id. ¶ 54.
the course of the plaintiff's employment, Abbott
repeatedly represented to the plaintiff and held out to the
public that the plaintiff owned a fifty percent stake in the
Restaurant. Id. ¶¶ 47, 51. Abbott also
represented to the plaintiff “that he would ‘take
care of her'” and “pay for her modest living
expenses with proceeds from the Restaurant.”
Id. ¶ 7. Placing “her trust in Abbott,
” the plaintiff worked at the Restaurant without pay
for years, believing all the while that “she was, in
fact, the owner of fifty-percent of the Restaurant.”
Id. Unbeknownst to the plaintiff, however, Abbott
“concealed the existence of” and
“surreptitiously redirected” Restaurant profits
from the plaintiff to himself and Brooks. Id. ¶
plaintiff's personal relationship with Abbott
“began to erode” in late 2014, at which time the
plaintiff sought from Abbott an accounting of the
Restaurant's financial information “to ascertain
her exact ownership interest in the Restaurant.”
Id. ¶ 12. Abbott responded that the plaintiff
“was ‘owed nothing'” and “would
‘get nothing.'” Id. ¶ 13.
Abbott “suddenly stop[ped] paying any of [the
plaintiff's] living expenses” and told the
plaintiff “that she would now be responsible for
[making] mortgage” payments “on the home in which
[the two] had lived since 2005.” Id. ¶
14. Having never received payment for her work at the
Restaurant, the plaintiff “had no savings to cover her
expenses.” Id. The plaintiff continues to work
at the Restaurant, yet “Abbott still fails and refuses
to pay [her] proper wages for her time.” Id.
plaintiff filed the Complaint in November 2016, approximately
two years after allegedly being first informed by Abbott that
she held no ownership interest in the Restaurant. The
Complaint asserts seven claims under two alternative
theories: if the plaintiff was an employee, despite
Abbott's statements to her and others that plaintiff held
a half-ownership interest in the Restaurant, she is owed
minimum and overtime wages under the FLSA and the WPA,
id. ¶¶ 25-74, both of which statutes
authorize the payment of liquidated damages in the amount of
double or quadruple the amount of unpaid wages. See
29 U.S.C. § 216(b); D.C. Code §
32-1308(a)(1)(A)(ii). Thus, Counts I and II seek accrued
minimum and overtime wages, respectively, under the FLSA,
Compl. ¶¶ 25-37, and Count III seeks accrued wages
under the WPA, id. ¶¶ 38-44.
if the defendants have defrauded the plaintiff of the
half-ownership interest in the Restaurant, which interest she
believed she held based upon Abbott's oral promises,
statements to others, and conduct, she seeks declaratory,
injunctive, and accounting relief. Id. ¶¶
25-74. Specifically, Count IV seeks a declaration that the
plaintiff “is an equitable owner of a fifty-percent
share of the Restaurant and/or LLC, and any other relief
deemed appropriate by the Court.” Id. ¶
52. Count V seeks an injunction compelling the defendants
“to convey fifty-percent ownership of the Restaurant
and/or LLC to [the plaintiff]” as well as “such
other and further relief as may be just and equitable.”
Id. ¶ 58. Count VI seeks an accounting of
“all revenue and expenses of the Restaurant from 2003
through current . . . fully and completely account[ing] for
all disbursements of any sums from the revenue of the
Restaurant, including cash disbursements, from 2003 through
current, ” as well as entry of judgment against the
defendants “in the amount found to be due to [the
plaintiff] on such accounting” and “such other
and further relief as may be just and equitable.”
Id. ¶ 65. Finally, Count VII seeks damages,
under a theory of common law fraud, “in the amount of
the value of fifty-percent interest in the Restaurant in
compensatory damages; punitive damages to be determined at
trial, plus interest and costs, ” and “such other
and further relief as may be just and equitable.”
Id. ¶ 74.
three defendants seek dismissal of all claims against them.
Abbott & OTR's Mot. Dismiss; Abbott & OTR's
Mem. Supp. Mot. Dismiss (“Abbott's Mem.”),
ECF No. 12; Brooks' Mot.; Brooks' Mem. at
district court must dismiss a complaint that “fail[s]
to state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible
on its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). In ruling on a motion to dismiss
for failure to state a claim, the court accepts as true
“all the [factual] allegations in the complaint . . .
(even if doubtful in fact)” that “raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555. “When there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Iqbal, 556 U.S.
claims are subject to a heightened pleading standard.
See Fed. R. Civ. P. 9(b). “In alleging fraud .
. . a party must state with particularity the circumstances
constituting fraud, ” though “conditions of a
person's mind may be alleged generally.”
Id. To satisfy Rule 9(b), a plaintiff must
“set forth in sufficient detail the time, place, and
manner” of the alleged fraudulent scheme, so as
“to guarantee all defendants sufficient information to
allow for preparation of a response.” United States
ex rel. Heath v. AT&T, Inc., 791 F.3d 112, 123 (D.C.
Cir. 2015) (internal quotation marks and citation omitted).
Such information often includes “specific fraudulent
statements, who made the statements, what was said, when or
where these statements were made, and how or why the alleged
statements were fraudulent.” Brink v. Cont'l
Ins. Co., 787 F.3d 1120, 1127 (D.C. Cir. 2015) (citation
omitted). “[A]lthough Rule 9(b) does not require
plaintiffs to allege every fact pertaining to every instance
of fraud when a scheme spans several years, defendants must
be able to defend against the charge and not just deny that
they have done anything wrong.” United States ex
rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d
1251, 1259 (D.C. Cir. 2004) (internal quotation marks and
defendant may raise a statute of limitations defense
“in a pre-answer motion under . . . Rule
12(b).” Smith-Haynie v. District of Columbia,
155 F.3d 575, 577 (D.C. Cir. 1998). The D.C. Circuit,
however, has cautioned that “courts should hesitate to
dismiss a complaint on statute of limitations grounds based
solely on the face of the complaint.” Firestone v.
Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996).
“Because statute of limitations issues often depend on
contested questions of fact, dismissal is appropriate only if
the complaint on its face is conclusively time-barred.”
Bregman v. Perles, 747 F.3d 873, 875 (D.C. Cir.
2014) (alteration omitted) (quoting de Csepel v. Republic
of Hungary, 714 F.3d 591, 603 (D.C. Cir. 2013)).
“A court should dismiss with prejudice only if it
determines the plaintiff ‘could not possibly cure the
deficiency' by alleging new or additional facts.”
United States ex rel. Shea v. Cellco P'ship, 863
F.3d 923, 936 (D.C. Cir. 2017) (quoting Firestone,
76 F.3d at 1209).
defendants seek to dismiss each of the plaintiff's counts
on grounds that (1) the plaintiff's FLSA and WPA claims,
in Counts I through III, are barred by statutes of
limitations, Defs.' Mem. at 2-4; (2) the WPA claim in
Count III is not cognizable because this local statute
governs only “when an employer must pay,
” not “what an employer must pay,
” and requires only that “when there is a dispute
over the amount owed, ” the employer “pay the
undisputed amount, ” id. at 5; (3) the claims
for declaratory, injunctive, and accounting relief, in Counts
IV through VI, are mere remedies to which the plaintiff is
entitled only by prevailing on an independent claim,
id. at 6-9; and (4) the fraud claim, in Count VII,
is not plead with the particularity required by Rule 9(b) of
the Federal Rules of Civil Procedure, id. at 10-13.
Brooks also argues that the plaintiff's claims against
him should be dismissed because the plaintiff has failed to
allege facts that, if believed, establish his liability as an
employer. Brooks' Mem. at 2-3.
reasons that follow, the plaintiff has pleaded valid claims
for minimum and overtime wages under FLSA and the WPA (Counts
One through Three), but has not adequately pleaded claims for
fraud, or for declaratory, injunctive, or accounting relief
(Counts Four through Seven). Accordingly, Counts Four through
Seven are dismissed without prejudice, and the
defendants' motions to dismiss are denied in all other
The Plaintiff's FLSA Claims Are Not Time-Barred.
plaintiff brings claims under the FLSA for unpaid minimum and
overtime wages that she alleges accrued over the course of
her decade-long employment at the Restaurant. See
Compl. ¶¶ 25-37. Given that the factual allegations
in the complaint are assumed to be true, the defendants do
not now dispute that the plaintiff was entitled to, and that
they failed to pay her, such wages. Instead, the defendants
contend that FLSA's statute of limitations bars any claim
for unpaid wages the plaintiff might have. Defs.' Mem. at
3-4. The plaintiff contends that the FLSA's statute of
limitations was tolled by the defendants' willfully
concealing their violations and causing the plaintiff to
believe that she held a fifty percent equity interest in the
Restaurant, making her exempt from coverage of the FLSA.
See 29 U.S.C. § 213(a)(1) (exempting from
coverage of FLSA's minimum wage provisions “any
employee employed in a bona fide executive, administrative,
or professional capacity”); 29 C.F.R. § 541.101
(defining the term “employee employed in a bona fide
executive capacity” to include “any employee who
owns at least a bona fide 20-percent equity ...