United States District Court, District of Columbia
RICHARD S. LEVICK, Plaintiff,
KRIS R. KISER, Defendant.
A. HOWELL Chief Judge.
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.
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.
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.
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.
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.
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.
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).
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).
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.”).
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.
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.
Motion for ...