The opinion of the court was delivered by: RICARDO URBINA, District Judge
GRANTING DEFENDANT TEG's MOTION TO DISMISS AND
GRANTING THE PLAINTIFF LEAVE TO AMEND THE COMPLAINT
This toxic-tort case comes before the court on defendant The
Environmental Group's ("TEG") motion to dismiss the plaintiff's claim of
negligent misrepresentation pursuant to Federal Rules of Civil Procedure
9(b) and 12(b)(6). Defendant TEG believes that the plaintiffs complaint
is missing something important. The court agrees. Because the plaintiff
fails to plead her claim of negligent misrepresentation with Rule 9(b)'s
requisite particularity, the court grants defendant TEG's motion to
dismiss that claim. The court, however, will not allow the sun to set on
the plaintiff's claim without offering her a chance to cure her pleading
deficiencies. Toward that end, the court grants the plaintiff leave to
amend her complaint. II. BACKGROUND*fn1
In May 1999, the plaintiff entered into purchase agreements with the
Millennium defendants for two newly-constructed units in the Ritz-Carlton
Residences, which later were combined into one unit ("the unit"). Am.
Compl. ("Compl.") ¶¶ 17-18. The plaintiff began to occupy the unit in
January 2001, after which time she began experiencing "a variety of
flu-related symptoms, such as nasal congestion, burning eyes and
fatigue." Id. ¶¶ 24-25. The plaintiff maintains that she had
no known history of such health problems before she resided in the unit,
and that her symptoms would subside whenever she left the premises.
Id. ¶ 25.
In February 2002, black-colored mold became visible along the walls of
the unit. Id. ¶ 34. From February through May 2002,
defendant NuChemCo, Inc. ("NuChemCo") performed air-quality tests that
revealed additional mold throughout the unit. Id. ¶ 39. The
Millennium defendants contracted defendant TEG, a purveyor of
environmental investigation and remediation*fn2 services, to perform the
remediation of mold-contaminated areas throughout the building.
Id. ¶¶ 11, 76. On June 25, 2002, defendant NuChemCo issued a report to the
plaintiff stating that remediation of the unit was complete. Id.
¶ 42. In addition, a representative of defendant Millennium Partners
indicated that it was safe for the plaintiff to reinhabit the premises.
Id. Despite the green light from defendants Millennium Partners
and NuChemCo, the plaintiff allegedly continued to suffer health problems
upon her reoccupation of the unit. Id. ¶ 43. In fact, her
health apparently further deteriorated as she experienced "severe
headaches, blurred vision, difficulty breathing, coughing, congestion,
nausea, vomiting, diarrhea, swelling and cognitive deficiencies."
Id. ¶ 44. The plaintiff attributes her maladies to various
toxic molds growing within the walls of the building as a result of
"serious and reoccurring leaks and flooding" that took place during
construction. Id. ¶¶ 74-75. The plaintiff's doctor ordered
her to move out of the unit, and she has not returned since her
departure. Id. ¶ 47.
In August 2002, the plaintiff received another report from defendant
NuChemCo, this time indicating the presence of toxigenic fungi in the
unit. Id. ¶ 50. Remediation of the plaintiff's unit
continued thereafter. Id. ¶ 72.
On November 14, 2002, the plaintiff filed her original complaint,
premising the case on diversity jurisdiction. On June 6, 2003, she filed
a motion to amend her complaint. On September 29, 2003, the court granted
the plaintiff leave to file her amended complaint. Anderson v. USAA
Cas. Ins. Co., 218 F.R.D. 307 (D.D.C. 2003). While the amended
complaint alleges a host of contract, tort, and statutory claims against
the defendants, it names only two claims against defendant TEG:
negligence and negligent misrepresentation. Compl. ¶¶ 158-71. With
respect to her negligent-misrepresentation claim, the plaintiff contends
that the defendants, including defendant TEG, falsely represented to her that the
condominium building posed no health hazards. Id. ¶ 169. She
also believes that they failed to disclose the building's severe
construction defects and widespread water damage that only later became
evident upon discovery of toxic mold in several areas of the building.
Id. Consequently, the plaintiffs alleged reliance on such
misrepresentations and omissions exposed her to mold contamination, which
in turn caused her to suffer "serious and ongoing personal injury and
property damage." Id. ¶ 171.
On October 9, 2003, defendant TEG filed a motion to dismiss the
plaintiff's claim of negligent misrepresentation pursuant to Rules 9(b)
and 12(b)(6). The court now addresses that motion.
As a preliminary matter, the court must determine whether it will
proceed to resolve the instant motion under Rule 9(b) or Rule 12(b)(6).
Although the D.C. Circuit has recognized that a court may base dismissal
on either rule, Kowal v. MCI Communications Corp., 16 F.3d 1271,
1279 (D.C. Cir. 1994), defendant TEG offers no argument in support of
dismissal under Rule 12(b)(6). Indeed, defendant TEG simply refers to the
rule in passing while pinning the crux of its challenge on Rule 9(b)'s
heightened-pleading standard. See generally Def. TEG's Mot. to
Dismiss ("Bef.'s Mot."). In addition, the plaintiff's responsive brief
similarly focuses on Rule 9(b). See generally Pl.'s Opp'n.
Accordingly, the court gives effect to the substance of the parties'
arguments by analyzing the complaint through a Rule 9(b) lens.*fn3 A. Legal Standard for a Rule 9(b) Motion to
Rule 9(b) requires that a pleader state with particularity the
circumstances constituting fraud or mistake. FED. R. CIV. P. 9(b).
Rule 9(b)'s particularity requirement ensures that the opponent has notice of
the claim, prevents attacks on his reputation where the claim for fraud
is unsubstantiated, and protects him against a strike suit brought solely
for its settlement value. Shields v. Wash. Bancorp., 1992 WL
88004, at *4 (D.D.C. Apr. 7, 1992) (Lamberth, J.); see also
Kowal, 16 F.3d at 1279 n.3 (observing that Rule 9(b) aims to prevent
a claim filed as a "pretext for the discovery of unknown wrongs"
(citation omitted)); Vicom, Inc. v. Harbridge Merch. Servs.,
20 F.3d 771, 777-78 (7th Cir. 1994) (recognizing that Rule ...