Whole Foods Mkt. Grp., Inc. v. Wical Ltd. P'ship

288 F. Supp. 3d 176
CourtCourt of Appeals for the D.C. Circuit
DecidedJanuary 22, 2018
DocketCase No: 17–cv–01079–RCL
StatusPublished
Cited by7 cases

This text of 288 F. Supp. 3d 176 (Whole Foods Mkt. Grp., Inc. v. Wical Ltd. P'ship) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whole Foods Mkt. Grp., Inc. v. Wical Ltd. P'ship, 288 F. Supp. 3d 176 (D.C. Cir. 2018).

Opinion

Royce C. Lamberth, United States District Judge

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 (1) 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 Wical1

Paragraph 4(F)-Conduct of Business:

*181"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, 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 ...."

Paragraph 18(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 *182default 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.

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Bluebook (online)
288 F. Supp. 3d 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whole-foods-mkt-grp-inc-v-wical-ltd-pship-cadc-2018.