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Hardaway v. Equity Residental Management, LLC

United States District Court, D. Maryland

July 22, 2016

ANGELENE HARDAWAY, et al.
v.
EQUITY RESIDENTIAL MANAGEMENT, LLC, et al.

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW United States District Judge

         Presently 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.

         I. Background

         The 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 parties.[1]

         Angelene 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 No. 12).

         On May 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).

         The 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).

         Plaintiffs, 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).[2] 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);[3] 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).[4]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; 60).[5]

         According 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.

         Lena 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).

         On July 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.

         Plaintiffs 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.).

         Plaintiffs 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 contend that:

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 office.

(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.).[6] 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.

         Defendant 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 . ¶¶ 17-18).

         II. Standard of Review

         The 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. 2009).

         Allegations 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 783 n.5.

         Furthermore, 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).

         III. Analysis

         In 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 ...


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