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Djourabchi v. Self

July 23, 2008

BABAK DJOURABCHI, ET AL., PLAINTIFFS,
v.
HARRY J. SELF, JR., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge,

MEMORANDUM OPINION

Now before the Court comes plaintiffs' Motion [53] for summary judgment on counts II and III of their Amended Complaint [23] directed against defendant, Harry J. Self. Plaintiffs Babak Djourabchi and Monica Welt, District of Columbia residents, filed their three-count Amended Complaint [23] in this Court on December 27, 2006, seeking judgment in the amount of at least $2,097,548.66 against defendant Harry J. Self, Jr., a resident of Maryland. Defendant, acting as the director and trustee of a defunct Maryland corporation, Self Construction, Inc. ("Self Construction"), answered [30] on February 6, 2007. (Am. Compl. ¶¶ 1-5.)

Jurisdiction is proper under 28 U.S.C. § 1332(a) and venue lies in this district under 28 U.S.C. § 1391(a)(2). Before the Court is plaintiffs' Motion for Summary Judgment for Counts II and III of their Amended Complaint. Upon full consideration of the motion, opposition brief, reply brief, the entire record, and applicable law, the Court finds that the Motion [53] for summary judgment will be GRANTED.

I. Factual Background

Plaintiffs' claims arise out of a home improvement contract entered into with defendants on May 13, 2005 ("Agreement"), and a subsequent Addendum signed on July 30, 2005, providing for certain work to be performed by Mr. Self and Self Construction on plaintiffs' residence. (Am. Compl. ¶¶ 6-16.) Plaintiffs allege that defendant breached the Agreement and Addendum by failing to perform and complete work in a timely and workmanlike manner, refusing to compensate plaintiffs for damages and costs, and by failing to be licensed to perform work in the District of Columbia as a general contractor. (Am. Compl. ¶¶ 17-19.) Plaintiffs further allege that defendant committed an unfair trade practice in violation of the D.C. Consumer Protection Procedures Act, D.C. Code § 28-3904, by accepting advance payments from plaintiffs as a requirement to perform home improvement services without being licensed. (Am. Compl. ¶¶ 20-24.) Finally, plaintiffs allege that defendant fraudulently misrepresented his status as a licensed home improvement contractor within the District of Columbia. (Am. Compl. ¶¶ 25-31).

Defendant generally admits plaintiffs' allegations, but opposes plaintiffs' motion in so far as it seeks damages in excess of $66,599.00, the amount paid to defendant in advance of the work's completion. (Def.'s Opp'n [55] at 1.) Defendant also alleges that plaintiffs' Motion [53] misquotes and misinterprets his opposition brief. (See id. at 2-4.) In a sweeping manner, defendant claims that there remain issues of material facts. Specifically, defendant claims that he made no fraudulent misrepresentations and that there exists an issue of the degree of damages owed. (See id. at 4-6.)

II. Analysis

A. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, a court must grant summary judgment when the pleadings, affidavits, depositions, answers to interrogatories, and admissions of record demonstrate that there are no genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A disputed issue of material fact is genuine and, therefore, precludes summary judgment where the Court determines that a reasonable jury could find in favor of the non-moving party on that factual issue. Anderson, 477 U.S. at 248. However, even where a genuine issue exists as to some material fact, the movant is entitled to summary judgment against "a party who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

As a general rule, when adjudicating a motion for summary judgment, the Court must "assume the truth of all statements proffered by the party opposing summary judgment" and construe all evidence in favor of the non-moving party. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). See Anderson, 477 U.S. at 255; Carter v. Greenspan, 304 F. Supp. 2d 13, 21 (D.D.C. 2004). Indeed, the Court must "draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). See also Washington Post Co. v. United States Dep't of Health & Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989).

However, "some statements are so conclusory as to come within an exception to" the general rule that the non-movant's statements must be fully credited when adjudicating a motion for summary judgment. Greene, 164 F.3d at 675 (citing as examples Delange v. Dutra Constr. Co., 153 F.3d 1055, 1058 (9th Cir. 1998); Lefkowitz v. Citi-Equity Group, Inc., 146 F.3d 233, 240 (5th Cir. 1998)). Thus "wholly conclusory statements for which no supporting evidence is offered" need not be taken as true for summary judgment purposes. Carter, 304 F. Supp. 2d at 21 (citing Greene, 164 F.3d at 674--75).

In order to survive a motion for summary judgment, the non-moving party must establish more than the "mere existence of a scintilla of evidence" in support of its claims. Anderson, 477 U.S. at 252. In order to prevail, the non-movant's opposition must contain more than "unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial." Carter, 304 F. Supp. 2d at 21. See FED. R. CIV. P. 56(e); Celotex, 477 U.S. at 324. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249--50. In fact, summary judgment may issue where the movant points to a substantial lack of evidence in the non-movant's case; see Celotex, 477 U.S. at 322; or where the movant demonstrates that the non-movant has failed to proffer "evidence on which the jury could reasonably find for" the non-moving party. Anderson, 477 U.S. at 252.

B. Plaintiffs' Motion for Summary Judgment for Defendant's Alleged Violations of D.C. Code Ann. §§28-3901, et seq. will be GRANTED

Plaintiffs seek summary judgment on Count II of their Amended Complaint. Count II alleges the defendant committed an unfair trade practice when he accepted advance payments from plaintiffs in violation of the District of Columbia Consumer Protection Act (D.C. Code Ann. §§28-3901, et seq.). (Pls.' Mot. [56] at 2.) To prove a violation of the Act, plaintiffs must show: (1) that a home improvement contract for a residential property existed between defendant and plaintiffs; (2) the contract was for at least $300.00; (3) pursuant to the contract, defendant required or accepted payment in advance of the full completion of all work required; (4) and, defendant was not licensed in the District of Columbia as a home improvement contractor. See Calson Constr. Co, Inc. v. Dupont W. Condo., Inc., 932 A.2d 1132, 1134-1135 (D.C. Ct. App. 2007) (citing D.C. MUN. REGS. tit. 16, § 800.1; D.C. MUN. REGS. tit. 16, § 899; Nixon v. Hansford, 584 A.2d 597, 599 (D.C. Ct. App. 1991)).

1. A Contract With a Price Greater Than $300 Existed Between Plaintiffs and the Defendant

Neither party denies that a contract existed between the parties. (See Pls.' Am. Compl. [23] ¶¶ 6-7; Def.'s Answer [30] ¶¶ 6-7.) The contract between plaintiffs and defendant was signed on May 13, 2005. According to the contract, defendant agreed to perform work on the plaintiffs' residence including, renovation of the basement unit, adding a full addition to the second and third floors, and construction of a new garage. (See Pls.' Ex. B [53-2] at 4-6.) The contract was to be completed within a period of seven months for $212,212.00. (Pls.' Am. Compl. [23] ¶ 6; Def.'s Answer [30] ¶ 6.)

In addition to the original agreement, the parties entered into an addendum on July 30, 2005. Under the Addendum, defendant agreed to perform additional underpinning work on the plaintiffs' basement, in exchange for an increase of the total contract price to $216,211.00 and an extension of the contract duration to March 1, 2006. (Pls.' Am. Compl. [23] ¶ 7; Def.'s Answer [30] ¶ 7.) Because there are no disputed facts concerning the contract, the Court finds that the contract between plaintiffs and the defendant did exist and exceeded the threshold price of three hundred dollars.

2. Defendant Accepted Payment in Advance of Full Completion of Work Agreed Upon in the Contract

The plaintiffs and defendant both agree that the plaintiffs paid defendant a down-payment of $20,000 before work on the plaintiffs' residence was completed. (Pls.' Am. Compl. [23] ¶ 9; Def.'s Answer [30] ¶ 9.) In fact, before defendant had completed construction on the plaintiffs' residence, plaintiffs paid a total sum of $66,599.00. Plaintiffs paid defendant $20,000 on May 13, 2005, May 28, 2005, and August 7, 2005; $2,600 on June 28, 2005; and $3,999 on July 30, 2005. (Pls.' Am. Compl. [23] ¶ 9; Def.'s Answer [30] ¶ 9.) Because both ...


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