MEMORANDUM OPINION
This case arises out of a very bitter and very unfortunate dispute between Plaintiff The Armenian Genocide Museum & Memorial, Inc. (“AGM & M”) and Defendants The Cafesjian Family Foundation, Inc. (“CFF”), and two of its officers, John J. Waters, Jr. (“Waters, Jr.”) and Gerard L. Cafesjian (“Cafesjian”) (collectively, “Defendants”), relating to the construction of an Armenian museum and memorial in Washington, D.C. Although the parties have reportedly expended significant time attempting to resolve their disputes, they continue to press forward with any and all grievances against each other in this and multiple other cases filed in this District.
Currently pending before the Court is Defendants’ [44] Motion to Dismiss Counts One, Three, and Four of the Second Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), which AGM & M has opposed. After considering all of the parties’ submissions to the Court, and all relevant case law, statutory authority, and the entire record of the case as a whole, the Court shall DENY Defendants’ Motion to Dismiss, except for AGM & M’s claim against Cafesjian in connection with the filing of a lis pendens on the properties at issue, which the Court shall convert into a Motion for Summary Judgment and GRANT in favor of Defendants, for the reasons that follow.
I. BACKGROUND
The following facts are drawn from AGM & M’s Second Amended Complaint and are not based on any findings of fact made by the Court. On a motion to dismiss, a court must accept as true all well-pleaded factual allegations set forth in the complaint.
Scandinavian Satellite Sys. v. Prime TV Ltd.,
A. The Origins of AGM & M
Beginning in the 1990s, a non-party advocacy group called the Armenian Assembly of America (the “Assembly”) began investigating the construction of a permanent museum and memorial in Washington, D.C., dedicated to the victims and survivors of the Armenian Genocide. See Second Am. Compl. ¶¶ 8, 9. In 1999, the Assembly located a possible site for the museum and memorial at the National Bank of Washington Building at 14th and G Streets in Washington, D.C. Id. ¶ 10. In order to fund the purchase of this site, the Assembly sought donations and pledges from various sources, including from Cafesjian, the President and Director of CFF. Id. ¶ 11.
On November 1, 2003, the Assembly executed a Grant Agreement with CFF and Cafesjian. Id. ¶ 13. The Grant Agreement contains several provisions that are relevant to Defendant’s Motion to Dismiss. First, the Grant Agreement sets forth the terms and conditions of two donations (called “Grants”) made by Cafesjian for the Assembly’s construction project. The first donation of $4 million (apparently given along with a supplemental loan) was provided to help the Assembly purchase the National Bank of Washington building. Id., Ex. 1 § 1.1-1.2 (11/1/03 Grant Agreement). A second donation of $12.85 mil *114 lion was provided for the purchase of four adjacent properties. Id. § 2.1-2.2. Second, CFF and the Assembly were required to, and did, create Plaintiff AGM & M as a non-profit corporation. Id. § 5.1. Third, the Assembly was required to enter into a Transfer Agreement with AGM & M whereby the Assembly would transfer to AGM & M all of its “right, title, and interest” in assets and pledges contributed to the Assembly for the museum and memorial project. Id. § 5.3(A). Fourth, the National Bank of Washington Building site and the four adjacent properties (the “Grant Property”) were to be used only in connection with the museum and memorial, subject to “Plans” approved by the AGM & M Board of Trustees. Id. § 3.1(A). Finally, the Grant Agreement included a reversionary provision related to Cafesjian’s donations:
(B) If the Grant Property is not developed prior to December 31, 2010 in accordance with [Plans to be approved by AGM & M’s Board of Trustees], or if the Grant Property is not developed in substantial compliance with the Plans including with respect to the deadlines for completion of the construction, renovation, installation and other phases detailed in the Plans, then:
i. in the event any portion of the Grants has not been funded, this Agreement terminates; and
ii. to the degree any portion of the Grants has been funded, at the Grantor’s sole discretion, the Assembly shall return to the Grantor the Grant funds or transfer to the Grantor the Grant property.
Id. § 3.1(B).
B. The Origins of the Present Dispute
AGM & M is governed, managed, and controlled by a Board of Trustees, as set forth in its Articles of Incorporation and By-Laws. Id. ¶¶ 23-25. Under its ByLaws, each trustee is entitled to a exercise one trustee vote, and one-half of the aggregate eligible Board of Trustees votes constitute a quorum at any properly convened Board of Trustees meeting. Id. ¶¶ 26, 28. Cafesjian and Waters, Jr. were members of the AGM & M Board of Trustees at times relevant to the Second Amended Complaint. Id. ¶ 43.
On October 23, 2006, “without a meeting of the Board of Trustees having been properly noticed, and without a properly noticed meeting of the Board of Trustees having been held at which the matter could have been discussed, Waters, Jr. executed, purportedly as an authorized officer of both [AGM & M] and CFF, a Memorandum of Agreement [“MOA”] Reserving Rights ... purportedly between [AGM & M] and CFF.” Id. ¶ 30 (emphasis in original omitted). On October 27, 2006, “and again without a meeting of the Board of Trustees having been properly noticed, and without a properly noticed meeting of the Board of Trustees having been held at which the matter could have been discussed, Waters, Jr. caused the [MOA] to be filed and recorded with the Recorder of Deeds for the District of Columbia.” Id. ¶ 32 (emphasis in original omitted). Waters, Jr. consulted with Cafesjian prior to executing and filing the MOA. Id. ¶ 31.
Because the Board of Trustees did not authorize Waters, Jr. to execute and record the MOA on behalf of AGM & M, “Waters, Jr. did not have the authority to execute the [MOA] on behalf of [AGM & M] or to file and record the [MOA] with the Recorder of Deeds on behalf of [AGM & M].” Id. ¶ 33. Once the other Trustees learned of the MOA, they demanded that Defendants have it rescinded and removed from the District of Columbia’s land records, which Defendants refused to do. Id. ¶ 34.
Over one year later, on July 16, 2008, Waters, Jr. recorded a release of the *115 MOA. Id. ¶ 36. The properties continued to have a cloud on their title, however, because the previous month on June 26, 2008, Defendants filed a Notice of Pen-dency of Action (“lis pendens ”) with the Recorder of Deeds. Id. ¶ 37. Accordingly, beginning with the MOA and continuing with the lis pendens, Defendants created a cloud on AGM & M’s property titles. Id. ¶ 35. AGM & M alleges that it suffered damages arising from the filing of both the MOA and lis pendens based on “the delay in the development of the museum caused by Defendants’ actions, and damages associated with additional costs required to secure financing, insurance, and other items necessary for the development of the museum.” Id. ¶ 39.
AGM & M initiated this suit on July 16, 2007. Its Second Amended Complaint contains four claims for relief, only three of which are subject to Defendant’s Motion to Dismiss:
• Count I: Breach of fiduciary duty against Waters, Jr. and Cafesjian;
• Count III: Declaration as to Non-Enforceability of Grant Agreement Reversionary Clause; and
• Count IV: Quiet Title and Removal of the Lis Pendens.
Id. ¶¶ 42-63. Defendants filed their Motion to Dismiss on August 15, 2008, AGM & M filed an Opposition on August 29, 2008, and Defendants filed their Reply on September 8, 2008. At the request of Magistrate Judge Alan Kay on behalf of the parties, the Court held in abeyance its ruling on this motion during the parties’ settlement negotiations, which were ultimately unsuccessful. The Motion to Dismiss is therefore fully briefed and now ripe for decision.
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,
III. DISCUSSION
A Count I: Breach of Fiduciary Duty Claim Against Cafesjian and Waters, Jr.
Count I of the Second Amended Complaint alleges that Cafesjian and Waters, *116 Jr. breached their fiduciary duties through the “deliberate execution and filing” of the MOA, which was “ultra vires.” Second Am. Compl. ¶ 44. AGM & M further alleges that Cafesjian and Waters, Jr. “were aware that the filing of the Lis Pendens would continue to result in the delay and obstruction of the museum project, and would cause substantial damages to AGM & M.” Id. ¶ 46. As a result, AGM & M “incurred substantial damages, including ... fees and costs necessitated by the filing and litigation of this action, and damages related to the delay in the development of the museum ... as financing, insurance, and other items necessary for the construction and completion of the museum were delayed or made more costly.” Id. ¶¶ 45, 48.
The elements necessary to state a legally cognizable breach of fiduciary duty claim are not in dispute. AGM & M must allege facts sufficient to show that (1) Cafesjian and Waters, Jr. owed AGM & M fiduciary duties; (2) Cafesjian and Waters, Jr. breached their duties; and (3) the breach was a proximate cause of an injury to AGM & M.
See Paul v. Judicial Watch, Inc.,
AGM & M has satisfied the first of these elements, and Defendants do not argue otherwise. As members of AGM & M’s Board of Trustees, both Cafesjian and Waters, Jr. were required to “act in the utmost good faith, and this good faith forbids placing [themselves] in a position where [their] individual interest clashes with [their] duty to the corporation.”
Friends of Tilden Park, Inc. v. District of Columbia,
The second element—whether Cafesjian and Waters, Jr. breached their fiduciary duties—is hotly contested. Defendants argue that Cafesjian and Waters, Jr. could not have breached their fiduciary duties to AGM & M because “there is no prohibition against a director or officer holding a substantive interest against the corporation he serves, and there is no breach of fiduciary duty when he exercises the rights under that interest.” Defs.’ Mot. at 6. According to Defendants, Cafesjian and CFF had a substantive reversionary interest in the five properties at issue, and [] they “were entitled to take all actions that any other lienholder had, despite the fact that Mr. Cafesjian and CFF’s officer John Waters, Jr. were on the AGM & M’s board.” Id. at 8. See also Defs.’ Reply at 3 (“because AGM & M agreed to conditionally revert the properties to Mr. Cafesjian and CFF, they had the same right to give notice of the reversion, and protect it with a lis pendens, as any other person with a land interest could, and did not breach their fiduciary duties by doing so”). Although Defendants acknowledge that the filing of the MOA “was improper,” Defs.’ Mot. at 9, they conclude that the error was “effectively harmless.” Id. at 10.
AGM & M takes a quite different view of the allegations in the Second Amended Complaint. According to AGM & M, “it is readily apparent that the Defendants are actively taking steps intended to delay the development of the Grant property,” so as to force the reversion of Cafesjian’s donations. Pl.’s Opp’n at 12. In doing so, Cafesjian and Waters, Jr. “ ‘failed to perform their duties ... honestly, in good faith, and with a reasonable amount of diligence and care,’ ”
id.
at 10-11 (quoting
Stem v. Lucy Webb Hayes Nat’l Training Sch. for Deaconesses and Missionaries,
While the Court agrees with Defendants that they have a right to protect Cafesji-an’s lienholder interests even though they may also be fiduciaries of AGM
&
M, those lienholder interests do not give Cafesjian and Waters, Jr. license to actively undermine the ability of AGM & M to operate as it was intended. None of the cases cited by Defendants suggest otherwise.
See, e.g., Storetrax.com, Inc. v. Gurland,
For present purposes, the Court must “construe the complaint in the light most favorable to [AGM & M] and accept the complaint’s allegations as true.”
Mawalla v. Hoffman,
The analysis with respect to the filing of the
lis pendens
is more nuanced. Defendants’ Motion to Dismiss points out that Cafesjian resigned from the Board of Trustees in September 2006, prior to the filing of the
lis pendens
in June 2008.
See
Defs.’ Mot. at 10 (“Mr. Cafesjian had already resigned from AGM
&
M by the time the
lis pendens
was filed”). AGM
&
M’s Opposition concedes this point.
See
Pl.’s Opp’n at 6 (“On September 13, 2006, Cafesjian sent a letter to the other Trustees of AGM & M, announcing his resignation as a Trustee ... ”). Defendants’ Motion to Dismiss also argues that Cafesjian no longer owed fiduciary duties to AGM & M after his resignation and thus could not have breached any fiduciary duty in 2008.
See
Defs.’ Mot. at 10-11. AGM & M failed to respond to this argument which, in this district, acts as a concession.
See, e.g., Fox v. Am. Airlines, Inc.,
With respect to Waters, Jr., Defendants argue that he was not involved in the filing of the lis pendens and, even if he had been involved, it would not have constituted a breach of fiduciary duty. See Defs.’ Mot. at 11. Although the Court agrees that the Second Amended Complaint is rather opaque with respect to Waters, Jr.’s involvement with the Us pen-dens filing, the Court finds that AGM & M did allege that Waters, Jr. was involved in the filing in some capacity. See Second Am. Compi. ¶ 48 (“As a direct and proximate result of Cafesjian and Waters, Jr.’s filing of the Lis Pendens, AGM & M has incurred substantial and foreseeable damages”). Ultimately, whether the filing of the Us pendens may constitute a breach of fiduciary duty will depend on the evidence that will be offered in this case. AGM & M alleges that Waters, Jr. sought to maintain a cloud on the title of AGM & M’s properties through the filing of the Us pendens after improperly clouding the title with the MOA. Second Am. Compi. ¶ 46. AGM & M further alleges that the purpose of recording the MOA and lis pen-dens was to delay development of these properties and force a reversion of Cafesjian’s donations, which clearly conflicts with the best interests of AGM & M. Id. ¶¶ 35, 39, 46. See also Pl.’s Opp’n at 12. The Complaint and pleadings also do not clarify whether Waters, Jr. was, like Cafesjian, no longer a member of AGM & M’s Board of Trustees at the time the lis pendens was recorded. In fact, the pleadings appear to contradict each other while setting forth numerous facts outside the scope of the Second Amended Complaint. See, e.g., Defs.’ Mot. at 10 (indicating that Waters, Jr. was a member of the Board of Trustees at the time of Us pendens was filed); PL’s Opp’n at 6 (indicating that Waters Jr. had resigned his position as treasurer). Defendants’ Motion to Dismiss is not the appropriate procedural vehicle for considering these facts nor resolving any factual disputes between the parties. In any event, based the allegations set forth above and those contained in the Second Amended Complaint, the Court finds that AGM & M has sufficiently alleged a breach of fiduciary duty against Waters, Jr., in connection with the filing of the Us pendens.
The third and final element of a breach of fiduciary duty claim requires AGM & M to plead facts sufficient to show that a breach of fiduciary duty caused an injury to AGM & M. The Second Amended Complaint alleges that AGM & M suffered damages arising from the filing of both the MOA and lis pendens based on “the delay in the development of the museum caused by Defendants’ actions, and damages associated with additional costs required to secure financing, insurance, and other items necessary for the development of the museum.” Second Am. Compi. ¶ 39. Although Defendants argue that “AGM & M is not entitled to damages based on a party’s mere provision of notice of [a substantive reversionary interest], even if the notice was procedurally improper,” Defs.’ Mot. at 11, that argument requires the Court to accept Defendants’ interpretation of AGM & M’s allegations. At this stage, the Court is required to construe all facts in AGM & M’s favor, and in doing so, the *119 Court finds that AGM & M has sufficiently alleged damages caused by the actions of Cafesjian and Waters, Jr.
Accordingly, the Court shall deny Defendants’ Motion to Dismiss Count I of the Second Amended Complaint, except for the claim against Cafesjian in connection with the filing of the lis pendens, which the Court shall convert into a motion for summary judgment and grant in favor of Defendants.
B. Count III: Declaration as to Non-Enforceability of Grant Agreement Reversionary Clause
Count III of the Second Amended Complaint seeks a declaration that the reversionary clause in the Grant Agreement is non-enforceable based on the actions of Cafesjian and Waters, Jr. 3 Defendants argue that this claim should be dismissed because the recording of the MOA and Us pendens “do not themselves state any legally cognizable harm.” Defs.’ Mot. at 14. See also Defs.’ Reply at 5 (arguing that the filing of the MOA and Us pendens “were lawful and therefore cannot serve as the basis for invalidating the substantive [reversionary] interest”). This argument depends on whether AGM & M is ultimately successful on its breach of fiduciary duty claim. Because the Court is denying Defendants’ Motion to Dismiss that claim (except for the one portion of the claim concerning Cafesjian and the filing of a Us pendens), the Court finds that it is premature to consider dismissal of Count III, which may or may not constitute an appropriate remedy depending on the evidence yet to be adduced in this case. Accordingly, the Court shall deny Defendant’s Motion to Dismiss Count III of the Second Amended Complaint.
C. Count IV: Quiet Title and Removal of the Lis Pendens
Count IV seeks a declaration to quiet title, removal of the Us pendens on the properties at issue, and an injunction to prevent Defendants from making any further efforts to cloud the title on the properties. 4 Defendants argue that this claim should be dismissed because CFF has an interest in the property located in Washington, D.C. by virtue of the reversionary clause in the Grant Agreement, and D.C.Code § 42-1207 allows a Us pen-dens to be filed during the pendency of a proceeding that affects the title to a property located in Washington D.C. See Defs.’ Mot. at 19. Should AGM & M prevail on Counts I and III of the Second Amended Complaint, however, the relief requested by this claim may be entirely appropriate. Just as with Count III above, the Court finds that it is premature to consider dismissal of Count IV, which may or may not constitute an appropriate remedy depending on the evidence yet to be adduced in this case. Accordingly, the Court shall deny Defendants’ Motion to Dismiss Count IV of the Second Amended Complaint.
IV. CONCLUSION
For the reasons set forth above, the Court shall DENY Defendants’ Motion to *120 Dismiss, except for the claim against Cafesjian in connection with the filing of the lis pendens on the properties at issue, which the Court shall convert into a Motion for Summary Judgment and GRANT in favor of Defendants. An appropriate Order accompanies in this Memorandum Opinion.
Notes
. The Court shall limit its review of the facts to only those related to Defendants’ Motion to Dismiss.
. The Court notes that Cafesjian also appears to have resigned from the Board of Trustees prior to the filing of the MOA (which occurred in October 2006), but Defendants did not argue for dismissal on this basis. The Court shall refrain from addressing this argument because Defendants did not raise it.
. Defendants assert that this claim is "identical to a claim” raised by AGM & M in Armenian Assembly of America, Inc. v. Cafesjian, No. 08-255, currently pending before this Court. That is not entirely accurate. Even though the claims both seek a declaration that the reversionary clause of the Grant Agreement is unenforceable, the claims are predicated on different factual allegations.
. Plaintiffs contend that Defendants have conceded that they have no rights with respect to the properties based on language extracted from a court filing by Defendants in a District of Minnesota case. See Second Am. Compl. ¶¶ 40-41, 60. A review of that filing, attached to the Second Amended Complaint, reveals that it does not contain such a concession. See Defs.’ Mot. at 16-18.