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Reese v. Loew's Madison Hotel Corp.

United States District Court, D. Columbia.

August 28, 2014

CREOLA C. REESE, Plaintiff,
v.
LOEW'S MADISON HOTEL CORP., Defendant

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[Copyrighted Material Omitted]

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For CREOLA C REESE, Plaintiff: Alan Scott Gregory, LEAD ATTORNEY, LAW OFFICES OF ALAN SCOTT GREGORY, PC, Washington, DC.

For LOEW'S MADISON HOTEL CORPORATION, Defendant: Craig L. Sarner, BONNER KIERNAN TREBACH & CROCIATA, Washington, DC.

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MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge.

The plaintiff, Creola C. Reese (the " plaintiff" ), is seeking compensation for damages she sustained allegedly as a result of bed bug bites during her stay in the summer of 2010 at the Madison Hotel, located at 1177 15th Street, N.W. in Washington, D.C. and operated by Defendant Loew's Madison Hotel Corp. (the " defendant" ). See Compl. ¶ 2, ECF No. 3. She asserts two causes of action, for breach of contract and violation of the District of Columbia Consumer Protection Procedures Act (" DCCPA" ), D.C. Code § 28-3905. See Compl. ¶ ¶ 32-41. Pending before the Court are the defendant's motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim, ECF No. 2, and the plaintiff's motion for leave to file an amended complaint, pursuant to Federal Rule of Civil Procedure 15(a), ECF No. 13. For the reasons stated below, the defendant's motion to dismiss is granted and the plaintiff's motion for leave to amend her complaint is denied as futile. [1]

I. BACKGROUND

The Complaint and the proposed Amended Complaint, ECF No. 13-2, contain nearly identical factual allegations, compare Compl. ¶ ¶ 4-31 with Proposed First Am. Compl. (" PFAC" ) ¶ ¶ 4-33, but the proposed Amended Complaint asserts four additional claims, see PFAC ¶ ¶ 45-61. The proposed Amended Complaint also clarifies the relief sought in this lawsuit, stating that the plaintiff is seeking " $300,000 for compensatory damages, punitive damages, treble damages under D.C. Code § 28-3905(k)(1), out of pocket expenses, plus interests [sic] and costs, including attorney [sic] fees." PFAC at 11. The factual allegations made in the operative Complaint, as well as the additions set out in the proposed Amended Complaint, are summarized below.

The plaintiff's claims arise from her six-day stay in late July and early August, 2010 at the defendant's hotel in Washington, D.C. See generally Compl. On July 31, 2010, the plaintiff checked into the Madison Hotel and was assigned to Room 817. Id. ¶ 5. The next day, on August 1, 2010, " the plaintiff began to itch." Id. ¶ 6. She responded by " throwing the bed pillows on the floor, taking the wool blanket off the bed, summon[ing] the hotel maid to change the sheets while the plaintiff was present, and . . . request[ing] that the throw pillows remain off of the bed." Id. Despite these steps, the plaintiff alleges that she continued to experience itching. Id. ¶ 8.

The plaintiff then had the sheets changed a second time and also took the additional steps of " spreading towels in the bed and over the pillows" before going to sleep on the evening of August 2.[2] Id. ¶ ¶ 7-8. The next morning, August 3, the plaintiff found " swelling and multiple red bumps and welts on her face, neck[,] arms, hands, legs and buttocks." Id. ¶ 9. The plaintiff had the sheets on her bed changed a third time. Id. To alleviate the

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itching, the plaintiff purchased and used two over the counter antihistamines. See id. ¶ 10. Despite taking the antihistamines, the plaintiff awoke on August 4 with " more swelling, welts and lesions on her buttocks, thighs, legs, hands, face and arms." Id. ¶ 11. The plaintiff avers that the bumps now had " white heads" and " some had red rings around them." Id. The bumps " were very painful as well as itchy." Id. The plaintiff continued to use the antihistamines and " realized that she had become extremely agitated and anxious." Id.

At 1:00 a.m. on August 5, the plaintiff's " right hand muscles began to tighten and she believed she was having a stroke." Id. ¶ 12. She called the front desk and " requested to see a doctor," leading to a telephone conversation with a third-party doctor at 1:15 a.m. See id. The doctor offered his opinion " that the bites were bed bug bites" and that the plaintiff needed a steroid injection " as soon as possible." Id. ¶ 13. The doctor told the plaintiff the steroid injection would cost $600 if the doctor came to the hotel to treat her. Id. The plaintiff declined the steroid injection, averring that she " did not have either insurance or that much cash on her at the time," which prompted the doctor to advise her to continue taking the antihistamines she had purchased and to get an " Aveeno bath from CVS." Id.

Following her conversation with the doctor, the plaintiff " called the front desk to tell someone in management" that the doctor believed her bites were caused by bed bugs. Id. ¶ 15. A member of the hotel's housekeeping staff was sent to change the plaintiff's sheets again, but upon seeing " her red bumps, welts and swelling, he told her that changing the sheets would not be sufficient and that he would move her to another room," Room 617. Id. ¶ 16.

At approximately 9:30 a.m. on August 5, the plaintiff requested to speak with the " general manager" at the front desk. Id. ¶ 17. The plaintiff subsequently had a conversation with the general manager, Larry Beiderman, who allegedly told the plaintiff that " he had never seen bed bugs on the face like that because they are usually on the arms and legs." Id. The plaintiff avers that she " had never mentioned bed bugs" prior to Beiderman's statement. Id.

Beiderman instructed the plaintiff to contact his administrative assistant to " make arrangements for the plaintiff to see a doctor." Id. ¶ 18. The plaintiff subsequently received a call from a dermatologist who, upon hearing a description of the plaintiff's concerns, " confirmed that the lesions were caused by bed bugs." Id. That evening, August 5, Beiderman's administrative assistant paid for a cab for the plaintiff to visit the dermatologist, " Dr. Unger," at his office, where the plaintiff was told " the bites were serious" and she was given several medications and a " non-oilated bath." Id. ¶ ¶ 19-20. The plaintiff was advised " not to travel for a few days, to cancel her flight home on Friday [August 6] and to return to see [the dermatologist] the next day." Id. ¶ 20. Dr. Unger also called the defendant's hotel and " told Mr. Beiderman . . . that the plaintiff needed to be closely monitored over the next 48 hours and he specifically requested that someone knock on her door or telephone her to check on her" because the plaintiff's " condition was very serious." Id. ¶ 21.

Upon her return to her hotel, the plaintiff states that " the bed bug bites started to become more painful" when the " Epipen injector" the doctor had given her " wore off." Id. ¶ 23. The plaintiff avers that she " became extremely agitated and anxious." Id. Eventually, the plaintiff requested a transfer to another hotel and was moved

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" in the early hours of Friday, August 6." Id.¶ 24. The plaintiff avers that no one from the hotel checked on her. See id. ¶ 22.

The plaintiff states that she left " a voice message" for " the Department of Health Community Hygiene to report the bed bug infestation" at the defendant's hotel " prior to departing [for] home." Id. ¶ 26. She further states that she " made a follow up call" on August 9, and was told by a department employee that the employee " would follow up himself with the Madison." Id. ¶ 28.

The plaintiff declined to cancel her flight home after learning it would cost " $1,000 to reschedule her departure," and returned home to Louisiana early on the morning of August 6. See id. ¶ 24-25. In order to avoid the possibility of bringing the bed bugs home with her, the plaintiff " threw her entire suitcase containing all of her clothes and other items in the trash." Id. ¶ 25. After returning home, the plaintiff visited an emergency room at a local hospital where she was prescribed additional medications. Id. ¶ 27. During the evening of August 9 and the morning of August 10, she " experienced vomiting after taking the medications [and] sleeplessness from the itching and pain." Id. ¶ 29. The plaintiff returned to her local hospital on August 10 where she was prescribed an anti-nausea medication. See id. ¶ 30.

The plaintiff avers that she " suffered weeks of nausea, vomiting, paranoia, sleeplessness, itching and pain from the bed bug bites; " that she incurred medical and travel related expenses; that she experienced " mental and emotional distress from paranoia, anxiety and sleeplessness, and visible scarring on her body; " and that she incurred " months of lost income from her cancelled consulting contracts, cancelled book appearances and cancelled life coaching appearances." Id. ¶ 31.

On August 5, 2013, three years after the plaintiff's ill-fated stay at the defendant's hotel began, the plaintiff filed the instant lawsuit in the Superior Court for the District of Columbia. See id. at 1 (bearing filing stamp from D.C. Superior Court showing action filed on August 5, 2013). As noted, that Complaint asserts two causes of action: Breach of Contract (Count I) and Unlawful Trade Practices under the D.C. Consumer Protection and Procedures Act, D.C. Code § 28-3905. Id. ¶ ¶ 32-41. The defendant subsequently removed the action to this Court and moved to dismiss the Complaint for failure to state a claim on the same date. See Not. of Removal at 1, ECF No. 1; Def.'s Mot. Dismiss at 1, ECF No. 2.[3] The plaintiff subsequently moved for leave to amend the complaint. See Pl.'s Mot. Lv. File Pl.'s Am. Compl. at 1, ECF No. 13.

The proposed First Amended Complaint would add only three allegations to the original Complaint, namely: (1) that the plaintiff " had come to Washington, D.C. to attend to family matters while staying at the Madison and to attend a business convention at the Madison as a consultant/independent contractor," PFAC ¶ 5; (2) that the plaintiff " reasonably believed that the room that she was assigned . . . would be free of any and all vermin, thoroughly cleaned, and fit for her to stay in," id. ¶ 6; and (3) that when she checked in to the defendant's hotel, " she was not told that there had ever been a bed bug infestation in any of the rooms prior to her arrival,"

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id. ¶ 20. At the same time, the proposed Amended Complaint would add four causes of action for breach of the implied warranty of merchantability pursuant to D.C. Code § 28:2-314, id. ¶ ¶ 45-48 (proposed Count III); negligence, id. ¶ ¶ 49-53 (proposed Count IV); negligent infliction of emotional distress, id. ¶ ¶ 54-56 (proposed Count V); and fraud, id. ¶ ¶ 57-61 (proposed Count VI).[4]

II. LEGAL STANDARD

A. Motion To Dismiss For Failure To State A ...


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