The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiff 1613 Harvard Limited Partnership ("Harvard") brought an action against defendants the District of Columbia, Patrick Canavan, Acting Director of the District of Columbia's Department of Consumer and Regulatory Affairs ("DCRA"), and Paul Waters, Acting Administrator, DCRA, Housing Regulation Administration ("HRA") (collectively the "District") claiming that the District violated Harvard's due process rights under the Fifth Amendment by delaying condominium conversion of an 80-unit apartment building located at 1613 Harvard Street, N.W. (the "Property"). The District filed a motion to dismiss for failure to state a claim or for summary judgment, claiming that Harvard failed to identify a constitutional injury. Because Harvard has not shown that it has an established property interest that triggers constitutional due process protections, the District's motion will be granted. Harvard also moved to file a second amended complaint. Because the second amended complaint would not survive a motion to dismiss, Harvard's motion will be denied.
Harvard sought to convert the Property into a condominium under the Condominium Act of 1976, codified at D.C. Code § 42-1904.01 et seq., and the Rental Housing Conversion and Sale Act of 1980, codified at D.C. Code § 42-3401.01 et seq., upon receiving a certificate of eligibility for conversion. Harvard then issued to each current tenant of the Property an offer of sale, accompanied by a 120-day notice to vacate. (Am. Compl. ¶ 14.)
On January 28, 2005, the HRA administrator sent Harvard a letter stating that an investigation had begun concerning tenant complaints about the conversion of the Property and requesting related information from Harvard. (Am. Compl. ¶ 19.) The letter also requested that Harvard refrain from taking any action that would interfere with the investigation "including, but not limited to, engaging in any further actions related to the disposition of the Property." (Am. Compl. ¶ 20.) A subsequent letter asked for additional documentation. Harvard maintains that it responded to each of these letters with the requested information.
Beginning in February 2005, District Councilmember Jim Graham, chair of the Committee on Consumer and Regulatory Affairs, held oversight hearings with respect to DCRA and instructed DCRA to initiate legal action against Harvard. Soon thereafter, DCRA issued a temporary cease and desist order requiring that Harvard halt all conversion efforts to determine compliance with applicable regulations.*fn1
Harvard maintains that the cease and desist order, which does not identify any violations of the Condominium Act and the Rental Housing Conversion and Sale Act, unconstitutionally prohibits it from "engaging in any activities that may facilitate a sale (or any other type of disposition) of the Property; and . . . taking any action to evict or, in any way, force the current tenants of the Property to vacate their respective living units" (Pl.'s Opp'n to Defs.' Mot. to Dismiss ("Pl.'s Opp'n"), Ex. 2), and restricts its ability to seek judicial remedies.*fn2
Harvard also alleges that the individual defendants' actions were taken with evil intent. (Am. Compl. ¶ 34.) The District moved to dismiss, or in the alternative for summary judgment, claiming that Harvard fails to identify any right prompting due process protections and that the individual defendants are protected from suit under the doctrine of qualified immunity.
In order to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, the allegations stated in a plaintiff's complaint "must be enough to raise a right to relief above the speculative level[.]" Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). The complaint must be construed in the light most favorable to the plaintiff and "the court must assume the truth of all well-pleaded allegations." Warren v. Dist. of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004). If a plaintiff fails to allege sufficient facts to support a claim or simply provides a "formulaic recitation of the elements of a cause of action[,]" the complaint must be dismissed. Twombly, 127 S.Ct. at 1965.
In determining whether a complaint fails to state a claim, a court must consider only facts alleged in the complaint, documents either attached to or incorporated in the complaint, or matters of which the court may take judicial notice. "'[T]he court may take judicial notice of matters of a general public nature, such as court records, without converting the motion to dismiss into one for summary judgment.'" Baker v. Henderson, 150 F. Supp. 2d 17, 19 n.1 (D.D.C. 2001) (citing Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993)).
Section 1983 of Title 42, United States Code, provides a remedy for the "deprivation of 'rights, privileges, or immunities secured by the Constitution and laws' of the United States." Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (quoting 42 U.S.C. § 1983). In assessing whether a § 1983 complaint states a claim for municipal liability, a court must first determine "whether the complaint states a claim for a predicate constitutional violation. . . . [I]f so, then the court must determine whether the complaint states a claim that a custom or policy of the municipality caused the violation." Baker v. Dist. of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citations omitted). Harvard maintains that the District cites no conduct necessitating the cease and desist order, and that the District deprived it of its Fifth Amendment right not to be deprived of property without due process. Harvard does not specify what the nature of this property interest is. However, it appears that Harvard claims that the District's temporary cessation of condominium conversion and denial of a judicial remedy for the temporary cessation constitutes a predicate constitutional injury.*fn3 The District contends that what Harvard "claims is a breach of its constitutional rights is nothing more than an ordinary local regulatory dispute." (Defs.' Mot. to Dismiss, Mem. of P. & A. ("Defs.' Mot. to Dismiss") at 7.)
The first step in either a procedural or substantive due process analysis is to determine "whether a private party has a property or liberty interest that triggers Fifth Amendment due process protection." Reeve Aleutian Airways, Inc. v. United States, 982 F.2d 594, 598 (D.C. Cir. 1993). Property interests are not created by the Constitution, but "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law[.]" Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). To demonstrate a property interest, "a person clearly must have more than an abstract need or desire for it. He must have more than a ...