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Levick v. Kiser

United States District Court, District of Columbia

September 8, 2016

RICHARD S. LEVICK, Plaintiff,
v.
KRIS R. KISER, Defendant.

          MEMORANDUM OPINION

          BERYL A. HOWELL Chief Judge.

         The plaintiff, Richard Levick, brings this action against the defendant, Kris Kiser, from whom the plaintiff purchased a home in Washington, D.C., (the “disputed property”) in July 2014. Prior to the sale, the defendant lived in and performed various renovations and additions to the property. Alleging that many of these modifications were faulty or otherwise not in compliance with relevant building codes, the plaintiff asserts a variety of state law claims, including breach of contract, fraud, negligent misrepresentation, violation of the District of Columbia Consumer Protection Procedures Act, and breach of the implied covenant of good faith and fair dealing. Compl. at 2, ECF No. 1. Invoking the Court's diversity jurisdiction, the plaintiff seeks compensatory and punitive damages, as well as reimbursement of his attorneys' fees and costs in bringing this action. Compl. at 2, 9-14. Pending before the Court is the defendant's Motion for Dismissal or, in the Alternative, for a More Definite Statement. See Def.'s Mot. Dismiss. (“Def.'s Mot.”), ECF No. 9. For the reasons set forth below, the defendant's motion is denied.

         I. BACKGROUND

         The defendant purchased the disputed property, which is located in northwest Washington, D.C., in 2010. See Compl. ¶¶ 5-6. From 2010 to 2014, the defendant occupied the property and oversaw extensive renovations to the home, including the addition of a screened porch and accompanying roof deck. Id. ¶¶ 6, 10; Def.'s Mot. at 2. According to the plaintiff, many of the renovations were completed by contractors, employed by the defendant, who “were not properly licensed” in the District. Compl. ¶¶ 6-7. The plaintiff alleges that the defendant exercised significant control over the completion of the renovations and, on at least two occasions, directed contractors to perform modifications to the home that did not comply with District of Columbia building codes. Id. ¶ 7. After completing the renovations, the defendant listed the disputed property for sale in April 2014. Id. ¶ 9.

         The plaintiff purchased the disputed property from the defendant on July 9, 2014, for $1.47 million. Id. ¶¶ 33, 43; Pl.'s Opp'n to Def.'s Mot. (“Pl.'s Opp'n”) at 7, ECF No. 11. Before purchasing the property, the plaintiff avers that he reviewed the Multiple Listing Service (“MLS”) listing for the property, which indicated that the home contained “four bedrooms and a den, and three and a half bathrooms.” Compl. ¶¶ 10. Further, the plaintiff alleges that “the seller's disclosures attached to” the contract consummating the sale specified that the defendant “had no actual knowledge” of any: (1) “violations of D.C. permits or other building restrictions;” (2) “structural defects in the walls or floors;” (3) “leaks [or] evidence of moisture in the basement;” (4) “windows not in normal working order;” (5) “defects in the plumbing system;” and (6) “defects in the electrical system.” Compl. ¶¶ 26-31. In reliance on these representations, the plaintiff decided to purchase the property from the defendant. Id. ¶ 12.

         Roughly a year after purchasing the disputed property, however, the plaintiff alleges that he discovered numerous latent structural defects and permitting issues during the course of his own further renovations to the property. Pl.'s Opp'n at 7. Specifically, the plaintiff alleges that, contrary to the assurances set out in the MLS listing and the Disclosure Statement, the defendant's renovations to the basement kitchen, two bathrooms, and den included numerous plumbing, heating and air conditioning, electrical and other issues that were not apparent when the plaintiff agreed to purchase the property and render those spaces “unusable.” Compl. ¶¶ 10- 32. The plaintiff further alleges that the defendant failed to obtain necessary permits and built additions to the home in violation of various District of Columbia building codes. Id. ¶¶ 10-12. Most notably, the plaintiff alleges that the defendant remodeled the den without permission from the District of Columbia Commission of Fine Arts Review Board (“CFARB”). Id. ¶ 10. As a result, the plaintiff contends that he must now apply for approval from the CFARB and, if his request is rejected, will be required to renovate the home to meet CFARB standards or demolish the room completely. Id. Further, the plaintiff asserts that the property cannot be sold or rented as a “four bedroom house with a den and three and a half bathrooms” without extensive remodeling in order to comply with D.C. building codes. Id. ¶ 11.

         Contending that the defendant was aware of each of these defects and permitting issues and intentionally concealed this information in selling the disputed property, the plaintiff alleges five common law and statutory claims under District of Columbia law arising out of the transaction, including: (1) breach of contract (Count I), id. ¶¶ 34-39; (2) common law fraud (Count II), id. ¶¶ 40-43; (3) negligent misrepresentation (Count III), id. ¶¶ 44-46; (4) violation of the District of Columbia Consumer Protection Procedures Act, D.C. Code §§ 28-3901, et seq. (Count IV), id. ¶¶ 47-54; and (5) breach of the common law covenant of good faith and fair dealing (Count V), id. ¶¶ 55-58. He seeks rescission of the transaction or compensatory and punitive damages, as well as reimbursement of his attorneys' fees and costs in litigating this action. Id. at 9-14.

         On January 8, 2016, the defendant moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the plaintiff's Complaint, in whole or in part, for failure to state a claim. Def.'s Mot. at 1; Fed.R.Civ.P. 12(b)(6). Alternatively, the defendant moves, pursuant to Federal Rule of Civil Procedure 12(e), for a more definite statement of the plaintiff's claims against the defendant, on the ground that the allegations set out in the Complaint are “so vague or ambiguous that the [defendant] cannot reasonably prepare a response.” Fed.R.Civ.P. 12(e); see Def.'s Mot. at 1. The defendant's motion is now ripe for consideration.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” to encourage brevity and, at the same time, “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and citations omitted); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319 (2007). The Supreme Court has cautioned that although “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v. Moss, 134 S.Ct. 2056, 2067 (2014) (quoting Iqbal, 556 U.S. at 678). A claim is facially plausible when the plaintiff pleads factual content that is more than “‘merely consistent with' a defendant's liability, ” “allow[ing] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). Although “detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, a complaint must offer “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action” to provide “grounds” of “entitlement to relief, ” Twombly, 550 U.S. at 555 (internal quotation marks omitted), and “nudge[] [the] claims across the line from conceivable to plausible, ” id. at 570. Thus, “a complaint [does not] suffice if it tenders ‘naked assertions' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

         In considering a motion to dismiss for failure to state a claim on which relief can be granted, the court must consider the complaint in its entirety, accepting all factual allegations in the complaint as true, even if doubtful in fact. Twombly, 550 U.S. at 555. In considering a Rule 12(b)(6) motion, the “court assumes the truth of all well-pleaded factual allegations in the complaint and construes reasonable inferences from those allegations in the plaintiff's favor, but is not required to accept the plaintiff's legal conclusions as correct.” Sissel v. United States HHS, 760 F.3d 1, 4 (D.C. Cir. 2014) (internal quotations and citations omitted). In addition, courts may “ordinarily examine” other sources “when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc., 551 U.S. at 322; see also English v. District of Columbia, 717 F.3d 968, 971 (D.C. Cir. 2013); Fed.R.Civ.P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”).

         III. DISCUSSION

         Seeking dismissal of the plaintiff's Complaint, the defendant attacks the sufficiency of the plaintiff's allegations regarding formal and informal representations the defendant made in connection with the plaintiff's purchase of the disputed property. Describing the plaintiff's allegations as “extraordinarily vague” and “full of holes, ” the defendant contends that the plaintiff has failed to plead sufficient facts to demonstrate that the defendant intentionally concealed any of the alleged defects identified by the plaintiff. Def.'s Mot. at 2.

         Federal jurisdiction in this case is based on diversity of citizenship, 28 U.S.C. § 1332, and the Court therefore must apply District of Columbia law in considering the sufficiency of the plaintiff's allegations in support of each of his state statutory and common law claims, see Burke v. Air Serv Int'l, Inc., 685 F.3d 1102, 1107 (D.C. Cir. 2012) (“The ‘broad command of Erie, ' of course, is that ‘federal courts are to apply state substantive law and federal procedural law' when sitting pursuant to their diversity jurisdiction.” (quoting Hanna v. Plumer, 380 U.S. 460, 465 (1965))); see also Arias v. DynCorp, 752 F.3d 1011, 1013 (D.C. Cir. 2014); Cordoba Initiative Corp. v. Deak, 900 F.Supp.2d 42, 46 n.3 (D.D.C. 2012) (applying District of Columbia law in diversity suit where “[b]oth parties applied District of Columbia law in their motion papers without engaging in any choice of law analysis”); Piedmont Resolution, L.L.C. v. Johnston, Rivlin & Foley, 999 F.Supp. 34, 39 (D.D.C. 1998) (same). With this precept in mind, the sufficiency of the plaintiff's allegations in support of each of his state law claims is addressed seriatim below.

         A. Motion for ...


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