United States District Court, D. Maryland
ANGELENE HARDAWAY, et al.
EQUITY RESIDENTIAL MANAGEMENT, LLC, et al.
DEBORAH K. CHASANOW United States District Judge
pending and ready for resolution in this case is a motion to
dismiss filed by Defendant Equity Residential Management, LLC
(“Defendant”). (ECF No. 53). The issues have been
briefed, and the court now rules, no hearing being deemed
necessary. Local Rule 105.6. For the following reasons,
Defendant’s motion to dismiss will be granted.
relevant factual background has been set forth previously,
but will be recounted here for the purposes of clarity.
(See ECF Nos. 13; 37). Unless otherwise noted, the
facts outlined here are construed in the light most favorable
to Plaintiffs Angelene Hardaway and Lena Hardaway
(collectively, the “Plaintiffs”), the nonmoving
resided at The Veridian, an apartment complex located in
Silver Spring, Maryland. She asserts that she is disabled,
although she does not specifically identify her disability.
Lena is Angelene’s sister and the payee of
Angelene’s disability benefits. Plaintiffs, proceeding
pro se, commenced this action on January 14, 2013,
by filing a complaint against Equity Residential Holding,
LLC. (ECF No. 1). The complaint concerned a dispute over rent
between Plaintiffs and the manager of The Veridian. Similar
allegations were alleged by Plaintiffs in two prior actions.
See No. DKC-11-1924; No. DKC-11-2224. On March 12,
defense counsel filed correspondence advising that
“Equity Residential Holding LLC . . . has no
relationship to Equity Residential Management, L.L.C., the
entity that manages The Veridian apartment complex, where Ms.
Angelene Hardaway currently resides.” (ECF No. 9).
Noting that the named defendant “contends that
Plaintiffs have sued the wrong party, and suggests that the
proper party is Equity Residential Management, LLC, which was
a defendant in the prior suit[s], ” the court directed
Plaintiffs to show cause why their complaint should not be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
(ECF No. 10). Subsequently, Plaintiffs filed under seal an
amended complaint asserting substantively similar claims as
the original pleading against three new defendants: Equity
Residential Services, LLC; Equity Residential Services II,
LLC; and Equity Residential REIT Services Inc. (ECF No. 11).
Plaintiffs separately moved for leave to file an amended
complaint, contending that there has been no prior complaint
related to the facts alleged in this action. (ECF
10, the court entered an order dismissing the case. (ECF No.
13). The court determined that Plaintiffs had already
litigated their disability discrimination and associated
retaliation claims and that the court lacked subject matter
jurisdiction over any race or gender discrimination claim
because Plaintiffs failed to exhaust. (Id. at 2).
Plaintiffs appealed to the United States Court of Appeals for
the Fourth Circuit, which vacated the order of dismissal and
remanded for further proceedings. (ECF No. 17). The Fourth
Circuit determined, inter alia, that “[t]he
district court erred . . . in concluding summarily on the
bare record before it, that the Hardaways’ prior
claims, asserted against different defendants from those sued
here, were precluded as a matter of law. This is because, as
the Hardaways assert in their informal brief on appeal, the
claims alleged here arose after the district court had
dismissed their earlier case.” (ECF No. 17-1, at 4-5).
The Fourth Circuit, however, “express[ed] no view as to
how the district court might best proceed upon remand, or
whether any asserted claims might survive further preliminary
proceedings.” (Id. at 5). The undersigned
entered an order reopening the case and granting
Plaintiffs’ motion for leave to file an amended
complaint. (ECF No. 19).
defendants named in the amended complaint - Equity
Residential Services, LLC; Equity Residential Services II,
LLC; and Equity Residential REIT Services, Inc. – moved
to dismiss. (ECF No. 27). The court granted the motion,
dismissed all claims against the named defendants, and
granted Plaintiffs 14 days within which to file a second
amended complaint. (ECF Nos. 37; 38). The court reasoned:
The named defendants here do not appear to have any
relationship to the allegations in the amended complaint.
Accordingly, [the named defendants] are not proper parties
here. The essence of the amended complaint is that the
property manager at [T]he Veridian – Matthew Moffett
– overcharged Angelene rent and “harassed her,
” and that when she complained to “Equity
Residential Corporate office, ” she was served with a
Notice to Quit. It appears that the proper parties here are
Equity Residential Management, LLC, the entity that manages
[T]he Veridian apartment complex, and EQR-Silver Spring
Gateway Residential, LLC, f/k/a Silver Spring Gateway
Residential, LLC, which owns the complex and whose address is
the corporate headquarters in Chicago.
(ECF No. 37, at 10-11 (footnotes omitted)). Nonetheless, the
court proceeded to address Plaintiffs’ federal claims
in the amended complaint and noted that the pleading raised a
retaliation claim under the Fair Housing Act
(“FHA”), Title VIII of the Civil Rights Act of
1968, 42 U.S.C. § 3601 et seq. Plaintiffs were
permitted to “file an amended complaint within fourteen
(14) days, setting forth allegations of retaliation under the
FHA against Equity Residential Management, LLC and EQR-Silver
Spring Gateway Residential, LLC f/k/a Silver Spring Gateway
Residential, LLC.” (ECF No. 37, at 18-19). Accordingly,
the court granted Plaintiffs the opportunity to amend their
pleading on narrow grounds – “to file an amended
complaint naming the two correct defendants and setting forth
factual allegations to state a retaliation claim under the
FHA.” (Id. at 19).
still proceeding pro se and in forma
pauperis, filed a second amended complaint and a third
amended complaint. (ECF Nos. 39; 41). The third amended
complaint did not name the proper parties, but the court
noted that, “[c]onsidering the allegations,
Plaintiffs’ amended complaint will be construed as
naming [Defendant].” (ECF No. 42, at 1). On July 29,
2015, and without leave of court, Plaintiffs filed the fourth
amended complaint. (ECF No. 50). Plaintiffs assert the
following claims against Defendant: unlawful retaliation
under the Fair Housing Act (“FHA”), Title VIII of
the Civil Rights Act of 1968, 42 U.S.C. § 3601 et
seq., and retaliatory eviction under Md. Code Ann., Real
Prop. § 8-208.1 (Count I); fraudulent misrepresentation
(Count II); unjust enrichment (Count III); negligence
(Count IV); and deceptive trade practices under the Maryland
Consumer Protection Act (“MCPA”), Md. Code Ann.,
Com. Law § 13-301 et seq. (Count V). (ECF No.
50 ¶¶ 19-60).Plaintiffs request at least $450, 000.00
in actual and punitive damages. Defendant filed the pending
motion to dismiss under Fed.R.Civ.P. 12(b)(6). (ECF No. 53).
Plaintiffs were provided with a Roseboro notice,
which advised them of the pendency of the motion to dismiss
and their entitlement to respond within 17 days. (ECF Nos.
54; 55); see Roseboro v. Garrison, 528 F.2d 309, 310
(4th Cir. 1975) (holding that pro se
plaintiffs should be advised of their right to file
responsive material to a motion for summary judgment).
Plaintiffs responded in opposition and filed a supplemental
response, and Defendant replied. (ECF Nos. 57; 58;
to Plaintiffs, Defendant “engaged in a pattern and
practice of discrimination against Angelene , once [she]
objected to this discrimination and attempted to address it,
Defendant promptly retaliated against [her].  Angelene 
is a person with [a] disability as defined by the [Americans
with Disabilities Act (“ADA”)].” (ECF No.
50 ¶ 6). The following factual account is construed from
the fourth amended complaint. Plaintiff alleges that
Defendant purchased The Veridian in 2011 and, since that
time, has provided Plaintiffs with “false and
intentional[ly] deceptive documentation to harm [them]. 
Defendant unjustly request[ed] and received excess rent
payment over the rental agreement amount.”
(Id. ¶ 7). According to Plaintiffs, Angelene
requested an accommodation under the ADA: she
“requested [that] all communication to be with her
sister, or in the form of documents. Defendant refused [to]
accommodate.” (Id.). Again, the fourth amended
complaint includes no specific allegation concerning
Angelene’s disability necessitating accommodation.
allegedly discovered evidence of repeated overcharges on
Angelene’s online rent payment portal in June 2011.
Although Angelene paid the July 2011 rent in full, Plaintiffs
assert that Defendant brought suit for repossession due to
failure to pay June 2011 rent. Subsequently, Lena
“printed the cancelled check proving the rent was paid
in full plus extra money for the next July, August and
September rents all paid in full. Defendant [was] trying to
extort another $741.48 on top of the inflated rent Plaintiff
already paid in June.” (Id. ¶ 9).
According to Plaintiffs, The Veridian’s leasing agent,
Dana Williams, acknowledged that the June 2011 rent was paid
in full, but she also communicated that Angelene owed in
excess of $1, 000.00 in late utility bills. Protesting that
she paid utilities directly to the utility companies,
Angelene allegedly showed Ms. Williams copies of the utility
bills paid in full. (Id. ¶ 10). The fourth
amended complaint refers to a hearing – apparently
regarding the repossession action referenced above –
that was scheduled for the following week on July 8, 2011.
(See Id . ¶ 11). Lena called Matthew Moore, who
Plaintiffs allege served as Defendant’s counsel, to
discuss Angelene’s rent payment history. During the
July 6 phone call, Lena and Mr. Moore disputed whether
Angelene owed money for rent or utilities, and Mr. Moore did
not follow up with Plaintiffs to resolve the issue.
(Id. ¶ 12).
19, Defendant allegedly demanded that Angelene pay $795.11
more than the amount called for in the rental agreement.
“Three days later . . ., [Defendant] demand[ed] [that]
Angelene pay $1, 928 over the agreed rental amount. Lena
already overpaid July rent and refused [to] pay any more of
the extorted rental amount.” (Id. ¶ 13).
Plaintiffs contend that, subsequently, they lodged complaints
with the “Equity Residential Corporate office, HUD fair
housing authority[, ] and [t]he Equal Rights Center. One
month later, Equity Residential served  Angelene with a
Notice to Quit.” (Id. ¶ 14). The fourth
amended complaint sets forth no facts regarding the
resolution of Plaintiffs’ communications with
Defendant, the United States Department of Housing and Urban
Development (“HUD”), or the Equal Rights Center.
Furthermore, the pleading is devoid of allegations concerning
the Notice to Quit.
contend that, from June to October 2012, “[D]efendant
credited Angelene over $3, 000. In November, [Defendant]
reversed the credit and overcharged [Angelene] another $300.
Defendant continued to harass Angelene  after she
requested reasonable accommodations.” (Id.
¶ 15). That month, a property manager paid Angelene a
visit at her apartment unit. Although she requested that the
property manager leave, he did not; he allegedly spoke loudly
about Angelene’s private information within earshot of
her neighbors. Plaintiff lodged additional complaints with
the Equity Residential corporate office and HUD. The
complaint concludes that the “property manager decided
it would be easier to evict Angelene  [than] to comply with
the [ADA].” (Id.).
assert that Angelene’s apartment unit was subsidized
from at least May 2012 to May 2013 by HUD’s Section 8,
which is the Housing Choice Voucher Program, as well as by
the Montgomery County Moderately Priced Dwelling Unit
(“MPDU”) Program. According to Plaintiffs,
Defendant benefited from the tax incentives offered by these
government programs but “failed to abide [by] the
regulations.” (Id. ¶ 16). At some point,
Angelene lodged complaints with the director of the
“Maryland Housing Authority” regarding
Defendant’s “refus[al] to follow HUD regulations
or [MPDU] regulations.” (Id.). Plaintiffs
Defendant failed to contact both agencies for approval before
raising rent. In [the summer and fall] of 2012, Property
Manager refused to comply with Angelene[’s] request to
communicate with her disability aid or provide documents, so
he tried to trick [her] into signing a digital acceptance
contract without seeing or explaining all the terms. He
refused to allow Angelene to see a full lease. When
Angelene’s caretaker questioned the management team
about the overcharge, they continued to state, [“We
are] looking into it.” When Lena requested the full
lease, [Mr. Moffett] said everything is “digital
now.” Lena wrote several [faxes and e-mails] to the
corporate office complaining about the discrimination.
However, these letters were being ignored by the corporate
(Id.). In a phone conversation on December 18, 2012,
Plaintiffs asked Mr. Moffett “why Angelene [was] being
charge[d] $2, 313.00 – [$500.00] more than the most
expensive one-bedroom in the building.” (Id.
¶ 17). Mr. Moffett allegedly conceded that Angelene did
not owe money to Defendant and that the Notice to Quit was
not related to money owed. Plaintiffs assert that the large
increase in monthly rent – they assert that rent
increased by 2, 797.56%, a statistic that is not borne out by
the figures set forth in the fourth amended complaint –
“proves [D]efendant was discriminating against
Angelene.” (Id.). Plaintiffs further aver that
Angelene’s rent was raised without informing HUD or the
MDPU program. There are no allegations, however, that
Plaintiffs paid the increased rent in 2012 or 2013.
evicted Angelene in June 2013 because she “complained
about not receiving the accommodations request,
that all communication  be in writing.” (Id.
¶ 16 (emphasis in original)). Although Defendant refused
to provide grounds for the eviction, Plaintiffs assert that
the action was taken in retaliation for numerous complaints
lodged with government agencies, a nonprofit, and Defendant
itself dating back to 2011. (See Id . ¶¶
Standard of Review
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the sufficiency of the complaint. Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir.
2006). A complaint need only satisfy the standard of
Fed.R.Civ.P. 8(a)(2), which requires a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” “Rule 8(a)(2) still requires a
‘showing, ’ rather than a blanket assertion, of
entitlement to relief.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must
consist of more than “a formulaic recitation of the
elements of a cause of action” or “naked
assertion[s] devoid of further factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations omitted). At this stage, all well-pleaded
allegations in a complaint must be considered as true,
Albright v. Oliver, 510 U.S. 266, 268 (1994), and
all factual allegations must be construed in the light most
favorable to the plaintiff. See Harrison v. Westinghouse
Savannah River Co., 176 F.3d 776, 783 (4th
Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993)). In evaluating
the complaint, unsupported legal allegations need not be
accepted. Revene v. Charles Cnty. Comm’rs, 882
F.2d 870, 873 (4th Cir. 1989). Legal conclusions
couched as factual allegations are insufficient,
Iqbal, 556 U.S. at 678, as are conclusory factual
allegations devoid of any reference to actual events.
United Black Firefighters v. Hirst, 604 F.2d 844,
847 (4th Cir. 1979); see also Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir.
of fraud, which Plaintiffs assert throughout the fourth
amended complaint, are subject to the heightened pleading
standard of Fed.R.Civ.P. 9(b). Harrison, 176 F.3d at
783. Rule 9(b) states that, “in alleging a fraud or
mistake, a party must state with particularity the
circumstances constituting the fraud or mistake. Malice,
intent, knowledge, and other conditions of a person’s
mind may be alleged generally.” Such circumstances
typically “include the ‘time, place, and contents
of the false representation, as well as the identity of the
person making the misrepresentation and what [was] obtained
thereby.’” Id. at 784 (quoting 5 Charles
Alan Wright & Arthur R. Miller, Fed. Prac. & Proc.
§ 1297 (2d ed. 1990)). Rule 9(b) provides the defendant
with sufficient notice of the basis for the plaintiff’s
claim, protects the defendant against frivolous suits,
eliminates fraud actions where all of the facts are learned
only after discovery, and safeguards the defendant’s
reputation. Id. at 784 (citation omitted). Fraud
allegations that fail to comply with Rule 9(b) warrant
dismissal under Rule 12(b)(6) review. See Id . at
pro se pleadings are liberally construed and held to
a less stringent standard than pleadings drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976));
Haines v. Kerner, 404 U.S. 519, 520 (1972). Liberal
construction means that the court will read the pleadings to
state a valid claim to the extent that it is possible to do
so from the facts available; it does not mean, however, that
the court should rewrite the complaint to include claims
never presented. Barnett v. Hargett, 174 F.3d 1128,
1132 (10th Cir. 1999). Even when pro se
litigants are involved, however, the court cannot ignore a
clear failure to allege facts that support a viable claim.
Weller v. Dep’t of Soc. Servs., 901 F.2d 387,
391 (4th Cir. 1990).
their response to the pending motion to dismiss, Plaintiffs
do not challenge Defendant’s specific legal arguments;
rather, Plaintiffs repeat many of the same conclusory
allegations in their opposition brief that appeared in the
fourth amended complaint. They also argue that: Defendant
failed to challenge the accuracy of Plaintiffs’
allegations (ECF No. 57, at 5-7); Plaintiffs are pro
se litigants entitled to liberal construction of their
claims (id. at 8-11); Defendant is misleading the
court and engaging in improper litigation tactics
(id. at 11-13); and the Fourth Circuit has already
ruled in this case (id. at 12). Accordingly, the
court has discretion to treat Defendant’s arguments as
uncontested and dismiss the pleading. See Grinage v.
Mylan Pharm., Inc., 840 F.Supp.2d 862, 867 n.2 (D.Md.
2011) (“[The plaintiff] failed to address this argument
in her response, so the court will treat ...