Whole Foods Market Group, Inc. v. Wical Limited Partnership ( 2018 )


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    UNITED STATES DISTRICT COURT JAN 2 4 2018
    FOR THE DISTRICT OF COLUMBIA '
    C|¢arkl U.S. District and
    ) Bankruptcy Courts
    WHOLE FOODS MARKET GROUP, INC., )
    )
    )
    Plaintiff, )
    )
    v. ) Case No: 17-cv-01079-RCL
    )
    WICAL LIMITED PARTNERSHIP, )
    )
    Defendant. )
    )
    MEMORANDUM OPINION
    I. _INTRODUCTION
    This breach of contract case was brought by plaintiff Whole Foods Market Group, Inc.
    (“Whole Foods”) against its commercial landlord, defendant Wical Limited Partnership (“Wical”).
    Whole Foods’s Amended Complaint, ECF No. 21, seeks relief on four separate counts. Before
    the Court is Wical’s motion to dismiss all four counts. ECF No. 26. Upon consideration of
    Wical’s motion, the opposition thereto, the reply brief, the applicable law, and the entire record
    herein, the Court will DENY in part and GRANT in part Wical’s Motion to Dismiss.
    II. BACKGROUND
    For purposes of this Motion to Dismiss the Court will provide (l) the relevant terms of the
    lease between plaintiff Whole Foods and defendant Wical and (2) a statement of Whole Foods’s
    well pleaded facts. This is appropriate because this is a motion to dismiss and the Court must view
    all well pleaded facts in the complaint (and any incorporated documents) as true and in the light
    most favorable to Whole Foods.
    A. Relevant Provisions from Whole Foods Lease with Wicall
    Paragraph 4(F)_Conduct of Business:
    “Tenant shall continuously conduct its business at the Demised
    Premises in accordance with the same standards of operation and in the
    same quality as it presently operates its other similar stores, subject to
    the other terms and provisions of this Lease. Tenant shall not cause
    injury or waste to the Demised Premises, reasonable wear and tear
    excepted Tenant shall keep the Demised Premises and all areas
    appurtenant thereto (including without limitation the parking garage,
    loading dock and service areas) clean and free from pests, insects,
    rubbish, trash and garbage, and, at its own expense, arrange for removal
    of same.”
    Paragraph 4(G)_Renovation
    “The Demised Premises may occasionally require rehabilitation,
    modernization or improvement Tenant may, from time to time, close
    the Demised Premises to the public for such periods as may be
    reasonably required in order to diligently modernize or improve same,
    but in no event shall such closures exceed sixty (60) days in the
    aggregate during any three (3) year period elapsing during the Lease
    Term.”
    Paragraph 5(A)_Non-Structural Repairs and Maintenance
    “[T]he tenant shall make all necessary structural and non-structural
    repairs and perform all maintenance in a good and Workable
    manner in accordance with all applicable governmental requirements.”
    Paragraph 7(A)-Alterations
    “Tenant shall not make any exterior or structural alterations,
    installations, changes, replacements, additions, or improvements
    without Landlord’s prior written consent. All other alterations,
    installations, changes, replacements, additions or improvements in or to
    the Demised Premises or any part thereof, which are not structural or
    exterior, may be made by Tenant, provided that Tenant has complied
    with its obligation (if any) to deliver to Landlord the plans or working
    drawings for same as below provided in this Article 7(A). The consent
    of Landlord under this paragraph shall not be unreasonably withheld,
    1 Whole Foods filed the lease under seal. See ECF No. 3. However, this Memorandum
    Opinion only includes language from lease provisions already cited by the parties in their
    motions, which have not been filed under seal.
    but may be conditioned upon such reasonable terms as landlord may
    reasonably determine appropriate, in order to assure the lien free
    completion of same. Tenant agrees to provide Landlord with the name
    of any proposed contractors of Tenant, certificates of liability insurance
    maintained by such contractors in reasonable amounts reasonably
    acceptable to Landlord and copies of all plans for any improvements to
    be made by Tenant at the time request for Landlord’s approval is made
    by tenant . . . Tenant may make interior non-structural alterations,
    installations, changes, replacements, additions or improvements to the
    Demised Premises without Landlord’s prior written consent, but Tenant
    shall provide Landlord with plans or working drawings prior to
    commencement of any non-structural alterations, installations, changes,
    replacements, additions or improvements to the Demised Premises . . .
    73
    Paragraph lS(A)_Events of Default
    “The aforesaid reference to fifteen (15) business days in the case of a
    non-monetary default shall be extended to include such additional time
    (not in excess of sixty (60) days) reasonably required in order to permit
    Tenant to fully cure any such non-monetary default hereunder, provided
    Tenant is diligently prosecuting its cure, with the understanding that no
    such additional time shall pertain to any default by Tenant of its
    obligation to continuously operate its business operations within the
    Demised premises and further that the aforesaid limitation to sixty days
    shall not apply in the case of a structural repair or replacement required
    of Tenant hereunder so long as Tenant is diligently and in good faith
    prosecuting such structural repair or replacement to completion.”
    Paragraph 21-_Quiet Enjoyment
    “[I]f the covenants and agreements on the part of Tenant shall be kept,
    performed and observed by Tenant as in this Lease provided, Tenant
    shall have the quiet, peaceable and uninterrupted possession and
    enjoyment of the Demised Premises, subject to the terms and provisions
    contained herein.”
    Paragraph 27(J)_Reasonable Consent
    “Whenever it is necessary under the terms of this Lease for either party
    to obtain the consent or approval of the other party, such consent or
    approval shall not be unreasonably withheld or delayed.”
    Paragraph 30(A)_Excuse for Nonperformance
    “If either party hereto shall be delayed or prevented from the
    ` performance of any act required hereunder (other than the payment of
    monies) by reason of acts of God, strikes, lockouts, labor troubles, plan
    approval delay, inability to procure materials, restrictive governmental
    laws or regulations, adverse weather, unusual delay in transportation,
    delay by the other party hereto or other cause without fault and beyond
    the control of the party obligated to perform (financial inability
    excepted), then upon notice to the other party, the performance of such
    act shall be excused for the period of the delay and the period of
    performance of such act shall be extended for a period equal to the period
    of such delay; provided, however, the party so delayed or prevented from
    performing shall exercise good faith efforts to remedy any such cause of
    delay or cause preventing performance, and nothing in this paragraph
    shall excuse Tenant from the prompt payment of any rental or other
    charges required of Tenant except as may be expressly provided
    elsewhere in this Lease.”
    B. Whole Foods’s Well Pleaded Facts
    The lease agreement between Whole Foods and Wical runs through January 31, 2021. The
    agreement provides Whole Foods tenancy of the property at 2321 Wisconsin Avenue, NW,
    Washington D.C. 20007, at which it operates its Georgetown store. Under the contract, Whole
    Foods has the option to renew the lease for three additional terms of five years. Whole Foods has
    consistently paid the rent and from 1996 until 2017 it never closed the store.
    In 2017, the District of Columbia issued two separate ordinance Violations to Whole Foods
    related to rodent problems at its store. Both times, Whole Foods was required to close the store.
    After the second violation notice_issued on March 13, 2017_Whole Foods sought a “complete
    and lasting resolution” to the problem. Amended Complaint, ECF No. 21 at 1137. Whole Foods
    consulted numerous contractors in order to understand the extent of the rodent problem and the
    proper corrective action needed to solve it. Whole Foods determined that curing the problem
    required that “the Georgetown Store must be closed, emptied of much of its inventory and fixtures,
    and gutted, including the removal of drywall and ceiling tiles, and a thorough cleaning of the
    premises.” 
    Id. at 1138.
    Only after demolition was Whole Foods able to understand the extent of
    the problem and the necessary remedial measures The Georgetown store has been closed for
    business since demolition began in March 2017.
    In late March, representatives from Whole Foods and Wical met to discuss the situation.
    Whole Foods followed up with a letter on April 5, 2017, informing Wical that the rodent issue had
    been resolved following demolition and that the interior of the store required a substantial rebuild.
    Whole Foods further provided Wical notice, pursuant to Paragraph 30(A) of the lease, that the
    store would remain closed “well beyond the 60 days anticipated in [the] lease.” ECF No. 21-2.
    Whole Foods continued, “We do not yet have a final timetable for the drawing, permitting,
    reconstruction and reopening of the store, but Will keep you updated as our progress advances. As
    ` you know, permitting alone will take about 4 months.” 
    Id. Since Whole
    Foods had to rebuild the interior of the store as a result of the rodent problem,
    it determined that it made sense to remodel the store in order to bring it up to the same standards
    of similar stores in the area. Whole Foods planned the following improvements: “modernizing the
    store’s layout; replacing existing food display cases; replacing the salad bar; replacing the
    millwork, cabinetry, register stands, walls, and ceilings which were demolished in curing the
    ordinance violation; overhauling the elevator and conveyor system; and adding new food
    presentations which requires the movement of certain major systems such as plumbing and
    HVAC.” Amended Complaint, ECF No. 21 at 1150. In order to receive the permit to commence
    this project, the District of Columbia requires Whole Foods to obtain the property owner’s
    approval. Whole Foods reached out to Wical for such approval on May 23, 2017. On May 26,
    2017, Wical refused its consent. Construction plans were completed on approximately May 26,
    2017. If they receive the necessary approvals, Whole Foods believes that it should take six months
    to rebuild the interior of the store, 'To date, Whole Foods has spent approximately $l dmillion on
    this project.
    In addition to refusing to consent to the rebuild of the stores interior, on May 15, 2017,
    Wical sent Whole Foods a Notice of Default, instructing Whole Foods that they had fifteen days
    to reopen for business to avoid default, at which time Wical could terminate the lease. Whole
    Foods believes this was a ploy to raise its rent. Whole Foods followed up with its own Notice of
    Default sent to Wical on July 14, 2017_eight days after Whole Foods delivered a complete copy
    of its rebuild plans to Wical. In its Notice of Default, Whole Foods alleged that Wical’s refusal
    to consent to the proposed renovation work constituted a breach of contract. On August 4, 2017,
    Whole Foods filed suit before this Court.
    III. LEGAL STANDARD
    To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “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)). When considering a motion to dismiss under Rule 12(b)(6),
    “the court must assume ‘all the allegations in the complaint are true (even if doubtful in fact),’ and
    the court must give the plaintiff ‘the benefit of all reasonable inferences derived from the facts
    alleged.”’ Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans Inc., 
    525 F.3d 8
    , 17 (D.C. Cir. 2008)
    (internal citations omitted).
    A claim is facially plausible 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
    (citing 
    Twombly, 550 U.S. at 556
    ). While the factual allegations in the complaint
    need not be “detailed,” the Federal Rules require more than “an unadorned7 the-defendant-
    unlawfully-harmed-me accusation.” 
    Id. (citing Twombly,
    550 U.S. at 555). “In. determining
    whether a complaint states a claim, the court may consider the facts alleged in the complaint,
    documents attached thereto or incorporated therein, and matters of which it may take judicial
    notice.” Stewart v. Nat'l Educ. Ass'n, 
    471 F.3d 169
    , 173 (D.C. Cir. 2006).
    IV. DISCUSSION
    A. Count I: Declaratory Judgement
    The first count of Whole Foods’s Amended Complaint boils down to a request that the
    Court declare (1) that Whole Foods did not breach the lease by remaining closed for more than 60
    days and (2) that Wical’s Notice of Default was invalid. In addressing this count, the Court must
    focus on the parties’ lease agreement Courts “analyze leases of re_al property according to
    established principles of contract law.” Abdelrhman v. Ackerman, 
    76 A.3d 883
    , 887 (D.C. 2013)
    446
    (citation omitted). Under the Declaratory Judgment Act, [i]n a case of actual controversy within
    its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations
    of any interested party seeking such declaration, whether or not such further relief is or could be
    controversy, between parties having adverse legal interests, of sufficient immediacy and reality to
    warrant the issuance of a declaratory judgment.”’ Medlmmune, Inc. v. Genetech, Inc., 
    549 U.S. 118
    , 127 (2007) (quoting Maryland Casuallfy Co. v. Pacifl`c Coal & Ol`l Co., 
    312 U.S. 270
    , 273
    (1941)). To survive a motion to dismiss, a declaratory judgment plaintiff must only show that
    there is “an actual or imminent injury caused by the defendant that can be redressed by judicial
    relief and that is of ‘sufficient immediacy and reality to warrant the issuance of a declaratory
    judgment.”’ Epos Technology Lta’. v. Pegasus Technologies Ltd., 636 F.Supp.Zd 57, 61 (D.D.C.
    2009) (quoting Teva Pharm. USA, Inc. v. Novartis Pharm, Corp., 
    482 F.3d 1330
    , 1338 (Fed. Cir.
    2007)
    Wical contends that the plain terms of the lease require dismissal of this count. Paragraph
    4(G) of the lease provides that Whole Foods “close the [store] to the public for such periods as
    may be reasonably required in order to diligently modernize or improve same, but in no event shall
    such closures exceed sixty (60) days in the aggregate during any three (3) year period elapsing
    during the Lease Term.” Whole Foods itself admits that it has been closed since March 2017, well
    beyond the 60 days allowed u the lease. Thus, according to Wical, Whole Foods breached the
    lease.
    ln response, Whole Foods incorrectly posits that their actions are excused pursuant to
    Paragraph 4(F) of the lease. Under Paragraph 4(F), Whole Foods must “continuously conduct its
    business at the [store] in accordance with the same standards of operation and in the same quality
    as it presently operates its other similar stores” and the store must be kept “clean and free from
    pests. . ..” However, the paragraph also notes that those obligations are “subj ect to the other terms
    and provisions of this Lease.” Thus, Paragraph 4(F) does not provide Whole Foods justification
    to remain closed longer than 60 days. Whole Foods’s obligation to modernize the store and keep
    it “clean and free of pests”_pursuant to Paragraph 4(F)-must be accomplished in accordance
    with Paragraph 4(G), which explicitly disallows the store from remaining closed for more than 60
    days. Paragraph 18(A) also does not provide Whole Foods cover for the delay in opening. While
    the paragraph does speak to an extended cure period, it explicitly defines the period to be “not in
    excess of sixty (60) days” and that the period cannot be extended if Whole Foods fails in “its
    obligation to continuously operate its business operations.”
    However, the lease’s force majeure clause~_Paragraph 30(A)_does justify closure
    beyond 60 days. The paragraph provides that Whole Foods is excused from the performance of a
    required act (“other than the payment of monies”) due to “acts of God, strikes, lockouts, labor
    troubles, plan approval delay, inability to procure materials, restrictive governmental laws or
    regulations, adverse weather, unusual delay in transportation, delay by the other party hereto or
    other cause without fault and beyond the control of the party obligated to perform.”
    As an initial matter, this clause is certainly meant to apply to the obligation re-open the
    business within 60 days. The lease specifically calls out that “payment of monies” are not excused.
    If the parties intended to preclude excusal of the 60-day requirement, it could have also been
    explicitly called out in the lease. The Court must therefore assess whether the well pleaded facts
    provide grounds for excuse under this paragraph
    Whole Foods sufficiently pleads that the initial closure of the store was beyond their
    control. They had in place a pest control program dating back to April 2, 2014. Despite~ that
    program, the rodent issue persisted and Whole Foods received two notices of violation from the
    District of Columbia, requiring immediate closure of the store. Upon receiving their second notice,
    Whole Foods engaged multiple contractors who advised that one of the causes of the problem was
    “inferior building construction.” Amended Complaint, ECF No. 21 at 11 50. ln order to understand
    the extent of the problem and ultimately solve it, the store had to be “be closed, emptied of much
    of its inventory and fixtures, and gutted, including the removal of drywall and ceiling tiles, and a
    thorough cleaning of the premises.” 
    Id. at 11
    38. Whole Foods promptly followed that advice and
    began demolition on the interior of the store, The Court finds, based on the well pleaded facts,
    that Whole Foods was forced to close and gut the interior of the store due to a cause “beyond
    [their] control”_a rodent problem.
    The Court also finds that ongoing delay in re-opening is excused under the contract.
    Paragraph 30(A) explicitly excuses performance due to “plan approval delay.” Rebuilding the
    interior of the store required that Whole Foods obtain permits from the District of Columbia. And
    as Whole Foods pleaded, "‘the District of Columbia'may not approve the plans and issue permits
    for months or more due to a backlog in permitting requests”_a process that is beyond its control
    and excused under Paragraph 30(A). 
    Id. at 11
    53.
    Moreover, D.C. requires that the property owner consent to plans before the permitting
    process can begin. Whole Foods alleges that Wical’s refiisal to consent also constituted excusable
    delay. Wical responds that [l] Whole Foods did not ask for their consent until May 23, 2017, [2]
    only provided them with the construction plans on July 6, 2017, and [3] failed to provide them
    with “the complete set of papers required under Paragraph 7(A), namely the plans along with
    required certificates of liability insurance and proposed contractors.” ECF No. 26-1 at 5-6. As to
    Wical’s first two contentions, Whole Foods pleaded that it “immediately` engaged an architect to `
    draw up plans incorporating the repairs and improvements and approved expedited services from
    all vendors relating to the remodeling project” and that “[o]nce the architect’s plans were
    substantially completed, they were submitted to the general contractor to draw up construction
    plans necessary to obtain permits.” The well pleaded facts indicate that Whole Foods diligently
    pursued plans and that was not the cause of any ongoing delays.
    Next the Court turns to Wical’s third contention_that Whole Foods failed to provide them
    with the complete set papers required under Paragraph 7(A). Paragraph 7(A) provides that Whole
    Foods must obtain Wical’s consent before making any “structural alterations” to the premises ln
    seeking consent, Whole Foods must “provide [Wical] with the name of any proposed contractors
    of Tenant, certificates of liability insurance maintained by such contractors in reasonable amounts
    reasonably acceptable to Landlord and copies of all plans for any improvements to be made by
    Tenant at the time request for Landlord’s approval is made by tenant.” But Whole Foods need
    10
    v only provide Wical with the “complete set of papers” to get approval for structural changes. The
    complete set of papers is not needed to get Wical’s approval for non-structural changes.
    In its Amended Complaint, Whole Foods asserts that it is making the following alterations:
    “modernizing the store’s layout; replacing existing food display cases; replacing the salad bar;
    replacing the millwork, cabinetry, register stands, walls, and ceilings which were demolished in
    curing the ordinance violation; overhauling the elevator and conveyor system; and adding new
    food presentations which requires the movement of certain major systems such as plumbing and
    HVAC.” Amended Complaint, ECF No. 21 at 1150. While these are not minor alterations, that
    does not make them structural. The parties have not pointed to a definition of “structural” in the
    lease, nor has the Court found one on its own. So the Court must turn to other sources._ Black"s
    Law Dictionary defines structural alteration as a “significant change to a building or other
    structure, essentially creating a different building or structure.” Structural Alteration, BLACK’S
    LAW DICTlONARY (10th ed. 2014) (emphasis added). Other courts have taken a similar approach,
    drawing a distinction between major alterations and altemations that are structural See, e.g. , Aetna
    Cas. & Sur. Co. v. Ocean Acc. & Guarantee Corp., 
    386 F.2d 413
    , 415 (3d Cir. 1967) (“Without
    attempting to give an all-inclusive definition of the term, it is our judgment that the replacement
    of a cooling system, although perhaps a major undertaking, is not a structural alteration within the
    accepted meaning of that term.”). It is the Court’s judgement that the alterations contemplated by
    Whole Foods will not essentially create a different structure. There is no evidence to suggest that
    Whole Foods is planning on removing load-bearing walls or repurposing the premises for an
    entirely different function. Rather, moving around the HVAC and plumbing system, upgrading
    equipment, and replacing drywall and ceiling tiles that were demolished, will result in a structure
    that will still look like and function as a grocery store,
    ll
    Wical argues that the Court must consider that the architectural plans provided to them by d
    Whole Foods in July, and which were attached to Whole Foods’s Amended Complaint, include a
    category of changes that are described by the architectural firm as “structural.” ECF No. 21-3 at
    ll. The Court takes this argument seriously. It is certainly relevant that the architect describes
    the alterations as “structural.” However, the Court does not agree with Wical that it is dispositive
    of the issue. The Court has no way of knowing whether the architect had seen the contract or
    intended to use the word “structura ” in the same way the parties construed the term in their lease
    agreement lt is entirely plausible that the architect thought about the term in a different way.
    Therefore, at this stage of the proceeding, when viewing the facts in the light most favorable to
    Whole Foods, the Court finds the proposed changes to be non-structural As such, the fact that
    Whole Foods did not provide the complete set of papers to Wical in seeking consent cannot be
    seen as a reason for delay in re-opening of the business, since Whole Foods was not required to
    provide them under the lease agreement
    In sum, the two maj or reasons for the store remaining closed_the rodent problem and the
    delay in acquiring permits to rebuild-were beyond Whole Foods’s control. Whole Foods is
    therefore excused, under Paragraph 30(A), from ensuring that the store does not remain closed
    beyond 60 days. Accordingly, Whole Foods’s count seeking declaratory judgment that it did not
    breach the lease and that Wical’s Notice of Default was invalid will not be dismissed. At this
    stage, the Court does not need to weigh in on each specific request that Whole Foods wants this
    Court to declare, see Amended Complaint, ECF No. 21 at 22-23, except to say that Whole Foods
    has pleaded sufficient facts to survive a motion to dismiss on this count.
    B. Count II: Damages for a Breach of the Covenant of Good Faith and Fair
    Dealing
    12
    As to Count'll, Whole Foods seeks damages due to Wical’s breach of the implied covenant
    of good faith and fair dealing. Whole Foods alleges that Wical breached its duty by issuing a
    notice of default which “is contrary to the spirit of the Lease” and destroys their ability to receive
    the fruits of the contract. Amended Complaint, ECF No. 21 at 1127.
    Wical first maintains that the Court must dismiss this claim since Whole Foods’s
    “allegations in support of its implied covenant claim are based on a breach of express provisions
    of the Lease_which is the entire premise of Whole Foods’ declaratory judgment claim.” ECF
    No. 26-1 at 14. Wical notes that under D.C. law “a party may not bring a claim for breach of the
    implied covenant of good faith and fair dealing when it is identical to other claims for relief under
    an established cause of action, such as a breach of contract claim.” Ia'. at 13-14 (citing Washington
    Metro. Area Transit Auth. v. Quik Serve Foods, Inc., 
    2006 WL 1147933
    , at *5 (D.D.C. Apr. 28,
    2006). However, it is also the case that “[p]laintiffs are not required at the pleadings stage to
    choose between alternative remedies.” Jacobson v. Hofgard, 
    168 F. Supp. 3d 187
    , 208 (D.D.C.
    2016) (citing Parr v. Ebrahimian, 
    774 F. Supp. 2d 234
    , 240 (D.D.C. 2011). Here, Wical contends
    that Count II mirrors the contract claim in Count I. In Count I, however, Whole Foods seeks a
    declaratory judgement. ln Count II, Whole Foods seeks damages. Since the remedies are different,
    the Court will not dismiss the claim on the grounds that it mirrors the claim in Count I.
    Wical further argues that even if the claim stands alone, it should be dismissed because
    Wical acted within its rights under the contract by issuing a notice of default. According to Wical,
    Whole Foods breached the express terms of the lease by remaining closed for longer than 60 days.
    Therefore, Wical was within its contract rights to issue a notice of default. As Wical puts it, “a
    breach of the implied covenant cannot stand when a defendant . .. acts in accordance with the terms
    of the contract.” ECF No. 31 at 9. “It is axiomatic that ‘[t]he implied covenant of good faith and
    13
    777
    fair dealing cannot contradict, modify, negate, or override the express terms of a contract_.
    Billups v. Lal). Corp. ofAm., 
    2017 WL 435723
    , at *5 (D.D.C. Jan. 30, 2017) (quoting 17A C.J.S.
    Contracts §437 (2016)).
    This argument is belied by the fact that, as the Court just held, Whole Foods did not breach
    the contract. Whole Foods’s failure to re-open the store within 60 days was excused under
    Paragraph 30(A) of the lease. Therefore, Wical was not within its rights to issue a notice of default.
    Under D.C. law, “[t]o state a claim for breach of the implied covenant of good faith and fair
    dealing, a plaintiff must allege either bad faith or conduct that is arbitrary and capricious.” Kumar
    v. George Washington Univ., 
    174 F. Supp. 3d 172
    , 189-90 (D.D.C. 2016) (quoting Wright v.
    lion/ard Univ., 
    60 A.3d 749
    , 754 (D.Cl 2013)). At this stage of the proceeding, Whole Foods has
    pleaded sufficient facts to meet that burden. Despite not having breached the contract, Wical sent
    Whole Foods a notice of default, which Whole Foods alleges was done for the purpose of getting
    out of the lease and raising the rent. Since Whole Foods met its pleading burden, the Court will
    DENY Wical’s motion to dismiss this count.
    C. Count III: Specific Performance and lnjunctive Relief for a Breach of the
    Covenant of Good Faith and Fair Dealing
    Next, Whole Foods requests that the Court grant injunctive relief and specific performance
    due to Wical’s breach of the implied covenant of good faith and fair dealing, Whole Foods appears
    to be seeking two forms of specific performance: (l) that the Court require Wical to extend the
    cure period and excuse closure under Paragraph 30(A) of the lease and (2) that the Court require
    Wical “to consent to the permit application under Paragraph 27(J) of the Lease.” Amended
    Complaint, ECF No. 21 at 11 143. As to injunctive relief, Whole Food requests that the Court enjoin
    Wical “from taking any steps to terminate the Lease, repossess the Georgetown Store, evict
    Plaintiff, or pursue forfeiture.” 
    Id. 14 Wical
    first argues that this count should be dismissed because “Whole Foods cannotstate
    a claim for breach of the implied covenant in this case.” ECF No. 26-1 at 15. This argument fails
    for the reasons discussed above_Whole Foods met its burden on that claim. Tuming to the
    appropriateness of the remedy, Wical avers that “specific performance cannot be awarded where
    there is no clear right to the relief a plaintiff requests under the Lease-here, among other things,
    forcing Wical to sign off on permits which would materially alter the premises and keep the Store
    closed for far longer than 60 days.” 
    Id. (citing Clark
    v. Route, 
    951 A.2d 757
    , 761 (D.C. 2008)
    (“[T]o sustain the right to specific performance of their contract, the purchasers must show that
    they have performed or have offered to perform all of the obligations required of them by the
    contract.”); rl`his argument is unavailing as it relates Ato Whole Foods’s first request for specific
    performance, but it effectively explains why the Court must dismiss Whole Foods’s second request
    for specific performance
    As the Court has explained, Whole Foods pleaded sufficient facts to prove that it did not
    breach the contract for failing to re-open the store within 60 days, given that it was excused under
    Paragraph 30(A). Therefore, it has the right to specific performance on this issue-the Court can
    require Wical excuse the store closure. See City Stores Co. v. Ammerman, 
    266 F. Supp. 766
    , 776
    (D.D.C. 1967) (finding that specific performance is an appropriate remedy for claims related to
    “[c]ontracts involving interests in land. . .”).
    Whole Foods also asks the Court to require Wical consent to the permit application
    pursuant to Paragraph 27(J) of the lease, arguing that Wical is unreasonably withholding its
    consent. But Paragraph 27(J) only applies “[w]henever it is necessary under the terms of this
    Lease for either party to obtain the consent or approval of the other party.” The only disputed term
    of the lease that contains a requirement “for either party to obtain the consent or approval of the
    15
    other party” is Paragraph 7(A). Paragraph 7(A) of the lease makes clear that structural changes to
    the building require landlord consent; but non-structural changes do not require landlord consent.
    (“Tenant may make interior non-structural alterations, installations, changes, replacements,
    additions or improvements to the Demised Premises without Landlord’s prior written consent. . .”).
    The Court has already explained why Whole Foods’s proposed alterations are non-structural in
    nature (at least when viewed in the light most favorable to Whole Foods). Therefore, Wical’s
    consent is not required under the lease.2 Since Paragraph 27(J) only applies when consent is
    required under the lease, it does not apply to this situation. Accordingly, Whole Foods does not
    have a legal right to consent under the terms of Paragraph 27(J).3
    Turning to Whole _Foods’s‘request for injunctive relief, Wical contends that Whole Foods
    fails to establish it will suffer irreparable harm absent an injunction. See American Civil Liberties
    Union v. Mineta, 
    319 F. Supp. 2d 69
    , 87 (D.D.C. 2004) (“In determining whether to enter a
    permanent injunction, the Court considers a modified iteration of the factors it utilizes in assessing
    preliminary injunctions: (l) success on the merits, (2) whether the plaintiffs will suffer irreparable
    injury absent an injunction, (3) whether, balancing the hardships, there is harm to defendants or
    other interested parties, and (4) whether the public interest favors granting the injunction.”).
    Whole Foods is correct that economic harm is only irreparable when it “is so severe as to cause
    extreme hardship to the business or threaten its very existence.” Hill Dermaceuticals, Inc. v. U.S.
    Food & Drug Admin., 
    826 F. Supp. 2d 252
    , 261 (D.D.C. 2011). But as Whole Foods points out,
    2 Wical’s consent may be necessary under D.C. law, but that is very different from being
    required under the lease.
    3 While Wical’s denial of consent may not be required under Paragraph 27(J) of the lease,
    it may constitute a violation of the covenant of quiet enj oyment. But the Court will address that
    issue later in this opinion.
    16
    it alleges more than just economic harm in this case. Whole Foods alleges “harm to its.goodwill
    and reputation in the community, its employees, and the value of the existing property rights and
    future leasehold.” ECF No. 29 at 24. The Court finds that those injuries sufficiently allege
    irreparable harm. For instance, if Wical attempts to break the lease based on the notice of default
    and Whole Foods is forced to move out of the store, it can suffer harm to its reputation in the
    community-harm that cannot be reversed. Moreover, D.C. courts have held that a tenant’s right
    to possession of a property is irreparable, given that property “tends to have unique
    characteristics.” See, e.g., Simpson v. Lee, 
    499 A.2d 889
    , 896 (D.C. 1985).
    The Court also finds that Whole Foods has pleaded sufficient facts to meet the other three
    ‘ factors of the permanent injunction test. For the.reasons‘already discussed by the Court, Whole
    Foods adequately pleaded success on the merits of its breach-of-the-covenant-of-good-faith-and-
    fair-dealing claim. Wical does not contest the last two factors-balancing of the hardships and
    public policy_and the Court finds that Whole Foods adequately pleaded them. Without an
    injunction, Whole Foods stands to lose its ability to lease the property and operate its store, while
    Wical will merely be required to abide by the contract. Finally, public interest favors the
    enforcement of contracts if a party has not breached. In this case, Whole Foods pleaded facts
    sufficient to support that they have not breached the lease. Thus, it is in the public interest for
    Wical to be enjoined from breaking the lease.
    In sum, the Court will DENY Wical’s motion to dismiss Count III, except as it relates to
    Whole Foods’s request that Wical be required to consent to the permit application under Paragraph
    27(J) of the lease.
    D. Count IV: Declaratory Relief & Damages for a Breach of Contract Claim
    under Paragraphs 18(A), 21, and 27(J) of the Lease
    17
    As Wical neatly summarizes, in Count IV “Whole l?oods seeks a declaration that Wical
    breached the Lease by: (1) withholding consent for the permit applications (Am. Compl. 11147-
    48); (2) failing to recognize Whole Foods’ right to excuse any delays for causes outside Whole
    Foods’ control (Am. Compl. 11 149); and (3) interrupting Whole Foods’ possession and quiet
    enjoyment of the Store by refusing to consent to the permits and threatening forfeiture of the Lease.
    Am. Compl. 1111 151-52.” ECF No. 26-1 at 16. As a result of Wical’s breach, Whole Foods alleges
    it can terminate the lease and seek damages. The Court has already addressed the first two reasons.
    Wical did not breach the lease by withholding consent for the permit applications pursuant to
    Paragraph 27(J) of the lease. The proposed alterations are non-structural and Wical’s consent is
    not required under the contract Wical did breach the lease, however, by_failing to recognize that ~
    Whole Foods was excused from its obligation to re-open within 60 days.
    Whole Foods’s only new argument here is that Wical breached Paragraph 21 of the Lease
    by “interrupt[ing] Whole Foods’ possession and enjoyment of the [Store].” Amended Complaint,
    ECF No.26-1 at 11 151. Whole Foods alleges that “[b]y refusing to consent to Whole Foods’ permit
    application and threatening forfeiture of the Lease, Defendant has made it impossible for Whole
    Foods to exercise its rights of possession and enjoyment of the Georgetown Store. Whole Foods
    is unable to obtain permits, begin construction, or re-open.” 
    Id. at 11
    152. Wical points out that
    quiet enjoyment can only be violated under the contract “if the covenants and agreements on the
    part of Tenant shall be kept, performed and observed by Tenant as in this Lease provided ...” And
    that Whole Foods violated their obligations under the contract by (1) failing to re-open within 60
    days; (2) by failing to operate the store at the same standard and quality of similar stores, and (3)
    by delivering the architectural plans late and in an incomplete manner.
    18
    'The Court has already addressed why Whole Foods did not breach the contract based on
    reasons one and three. Turning to the second reason, Whole Foods submitted plans to Wical for
    consent that were designed to raise the quality of the store. Wical refused to consent to those plans.
    Wical says that it did not breach the covenant of quiet enjoyment by refusing to consent to those
    plans because Whole Foods did not uphold its end of the bargain_to operate the store at a higher
    standard That argument strikes the Court as disingenuous.
    Courts Set a high bar for finding a breach of the covenant of quiet enjoyment-there is no
    breach of the covenant “unless there is an eviction from, or some actual disturbance in, the
    possession by the landlord or by some third person under paramount title.” Hyde v. Brandler, l 18
    A12d 398, 400 (D.(_:.l955).` While Wical did not change the locks on the property, its refusal to
    consent to the architectural plans has disturbed Whole Foods’s possession. Without Wical’s
    approval, Whole Foods is unable to apply for a permit to rebuild the interior of the store. Without
    a permit, Whole Foods is unable to open and operate its store. Yet Whole Foods continues to pay
    rent. The Court acknowledges that it cannot be that Wical must provide consent to any plans that
    Whole Foods puts in front of them. But there is no evidence in this case that Wical engaged with
    the plans and discussed with Whole Foods to what, if any, repairs and renovations Wical would
    consent. Rather, Whole Foods pleaded that Wical “failed to respond to [its] July 5, 2017 letter
    [with the attached architectural plans] in any manner.” ECF No. 21 at 1156 Accordingly, the Court
    finds that Whole Foods has pleaded sufficient facts to adequately support a breach of the covenant
    of quiet enj oyment.
    Next, the Court will turn to the issue of whether Whole Foods can terminate the lease and
    vacate the premises as a result of Wical’s breach. The lease itself is clear as to When the parties
    can terminate the lease: in the event of a bankruptcy (Section 17 of the lease) or in the event that
    19
    ‘Wliole Foods defaults (Section 18 of the lease). Whole Foods does not point to, nor has the Court
    foun601 A.2d
    1074
    , 1077-78 (D.Ci 1992). Since Whole Foods adequateiy states a claim for quiet enjoyment, it
    also states a claim for constructive eviction and survives a motion to dismiss on this issue
    in sum, the Court will DENY Wical’s motion to dismiss Count l\", except as it relates to
    Whole Foods’s request that the Court declare Wical in breach Paragraph 27(J) ofthe lease
    V. C()NCLUSION
    For the foregoing reasons, the Court will grant in part and deny iii part Wical’s motion to
    dismiss The Court will DENY the motion with respect to: (l) Counts l and ll of Whole Foods`s
    Amended Complaint (2) Count 111 {except as it relates to Whole Foods’s request that Wical be
    required to consent to die permit application under Paragraph 27(J) ofthe lease on which the Court
    will GRANT dismissal); and (3) Count lV (e):cept as it relates to Whole Foods’s request that the
    Court declare Wical iii breach of Paragraph 27(1 ) of the lease, on which the Court will GRAN'I`
    dismissal). A separate ()rder accompanies this Memorandum Opinion.
    Date: lamuary_zz;?.{)lfi m C ‘ w
    Roycéy€. Laniberth
    limited States District ludge
    20