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Mann v. Bahi

United States District Court, District of Columbia

April 27, 2017

DAVID E. MANN & VERA D. MANN, Plaintiffs,
v.
CONSTANT OTTRO BAHI, et al., Defendants.

          MEMORANDUM OPINION

          JOHN D. BATES United States District Judge.

         Drs. David Mann and Vera Mann are an elderly couple who claim they were brazenly robbed by their in-home nurses. Their son, James, hired professional nurses for them through Tri-Cities Nurses Registry and Helpmates, Inc. The Manns bring multiple tort claims against the nurses and Tri-Cities. They also bring a claim against Tri-Cities under the District of Columbia's Consumer Protection Procedures Act, alleging that Tri-Cities operated without the required license in the District of Columbia. The Manns and Tri-Cities now both move for summary judgment on that claim. As explained below, the Court will deny both motions.

         BACKGROUND

         I. Factual Background

         The facts relevant to this claim are largely undisputed.[1] The summary that follows is based on undisputed facts except where noted. A more complete explanation of the facts can be found in this Court's March 17, 2017, Opinion. See Mem. Op., Mar. 17, 2017 [ECF No. 36].

         Drs. David E. Mann and Vera D. Mann “are an elderly married couple” who have lived in the District of Columbia for 30 years. Am. Compl. [ECF No. 1-2] ¶ 1. Each plaintiff is referred to by his or her first name to avoid confusion. As of December 2016, they were both 92 years old. J. Mann Decl. [ECF No. 29-12] ¶ 4. In February 2015, David underwent surgery and an extended hospital stay; their son James determined that David would need private nursing care during his stay in a rehabilitation facility and at home after returning from the hospital. Pls.' Stmt. of Undisputed Facts [ECF No. 29-2] ¶¶ 10, 15. James hired nurses to provide this care through Tri-Cities. See id. ¶ 14; J. Mann Decl. ¶¶ 4-7.

         Tri-Cities Nurse Registry and Helpmates, Inc., doing business as Capital City Nurses, provides two options for nursing care. See Am. Compl. ¶ 18. Customers may hire Licensed Practical Nurses who are employed by the company. Id. ¶ 19. This service is known as “Capital City Nurses Healthcare Services.” Id. Alternatively, customers may hire “qualified, independent caregiver[s]” through its referral service, known as Capital City Nurses Registry. Id. ¶ 20; Def.'s Stmt. of Undisputed Facts [ECF No. 31-2] ¶¶ 1-3. The nurses available through Tri-Cities' registry are all licensed and operate as independent contractors. Def.'s Stmt. of Undisputed Facts ¶¶ 2-4. The client pays those nurses directly, and also pays a referral fee to Tri-Cities for “each shift that a client accepts services from a referred caregiver.” Id. ¶¶ 6-7.

         James ultimately decided to use the referral service to hire two primary caregivers for Vera and David. Am. Compl. ¶ 21; J. Mann Decl. ¶ 7. He chose the referral service because it was “more economical” and would allow his parents “to independently accept or reject the caregivers” that the company referred. J. Mann Decl. ¶ 7. Tri-Cities communicated with James primarily through two letters, both dated February 16, 2015. The first letter explained the two types of services that the company provides; the second was described as a “Welcome Letter” and provided more information regarding the referral service. Id. ¶¶ 7-11. The first letter stated that Capital City Nurses Registry is a “Nursing Referral Service Agency” and that Capital City Nurses Healthcare Services is a “Residential Service Agency.” Ex. B [ECF No. 29-12] at 8. It did not define these terms, or explain that they referred to licenses from the Maryland Department of Health. The second letter, which contained information specific to Capital City Nurses Registry, stated that Tri-Cities was licensed in Maryland as a Nursing Referral Service Agency. Id. at 9. It also stated that “in accordance with State regulations, the State of Maryland has established a Nursing Referral Service Agency Hotline” and provided that phone number. Id. at 10. It did not mention any license in the District of Columbia. James was responsible for making all of the arrangements on behalf of David and Vera, and he paid Tri-Cities referral fees as well as the nurses' fees. Pls.' Stmt. of Undisputed Facts ¶ 14.

         Beginning in March 2015, Constant Ottro Bahi and Marie Poteman were the Manns' primary daytime and nighttime caregivers, respectively. Am. Compl. ¶ 21. When Bahi or Poteman were unavailable, Tri-Cities referred substitute caregivers, one of whom was Mariatu Sesay. Id. ¶¶ 4, 22. Generally, the Manns were alone in their home with Bahi, Poteman, or Sesay. Id. ¶ 25.

         Over the next several months, the Manns noticed several items had gone missing from their home, and noticed Bahi, Poteman, and Sesay acting suspiciously. See id. ¶¶ 26-49. According to the Manns, Vera also noticed Bahi entering portions of the house that were behind locked doors and that Bahi was not meant to enter. Id. ¶ 31. These suspected thefts are recounted in detail in the Court's prior opinion. See Mem. Op., Mar. 17, 2017, at 1-4. As Tri-Cities acknowledges, at one time Vera reported one of Sesay's suspected thefts to Tri-Cities. Am. Compl. ¶ 36; Answer [ECF No. 13] ¶ 36. According to the plaintiffs, Tri-Cities responded that they had not received any other complaints about Sesay, and took no further action. Am. Compl. ¶ 36. According to the Manns, when Sesay was later assigned to cover a shift at their residence, they did not permit her to enter the house. Id. ¶ 37.

         II. Procedural and Statutory Background

         Vera and David filed this lawsuit in the D.C. Superior Court in April 2016, and filed an Amended Complaint in May 2016. Defendants removed the suit to federal court on the basis of diversity jurisdiction. See Notice of Removal [ECF No. 1] at 1; 28 U.S.C. §§ 1441, 1446, 1332. In March 2017 this Court issued a Memorandum Opinion denying defendant Bahi's motion to dismiss one count against him. Now, the plaintiffs have filed a motion for partial summary judgment on count ten, the Consumer Protection Procedures Act (“CPPA” or “the Act”) claim, and defendant Tri-Cities has filed a cross-motion for partial summary judgment on the same claim. See Pls.' Mot. for Partial Summ. J. [ECF No. 29]; Def.'s Cross-Mot. for Partial Summ. J. [ECF No. 31].

         The Manns contend that Tri-Cities operated an unlicensed nurse staffing agency in the District of Columbia, and that it presented misleading information about its licensing status to James Mann, in violation of the CPPA. The merits of that claim stem from a difference in Maryland and D.C. laws requiring licenses for agencies providing nursing care. Maryland provides one license for agencies that employ home-care nurses, and another license for agencies that provide referrals to nurses who are independent contractors. See Md. Code § 19-4A (Residential Service Agencies); id. § 19-4B (Nursing Referral Service Agencies). The District of Columbia, on the other hand, requires a license for “nurse staffing agencies, ” which must employ their nurses, without specifying a different license for agencies that refer independent-contractor nurses. See D.C. Code §§ 44-1051.01-.18 (Nurse Staffing Agency Act). The Manns argue that D.C.'s licensing scheme only permits Tri-Cities to provide services by employed nurses; it does not permit an agency to provide referrals from independent-contractor nurses at all-and thus Tri-Cities operation of the Capital City Nurses Registry in D.C. violates the licensing statute.

         The CPPA, in turn, forbids a variety of unlawful trade practices and “establishes an enforceable right to truthful information from merchants about consumer goods and services that are or would be purchased, leased, or received in the District of Columbia.” See D.C. Code §§ 28-3901 to 28-3903 (CPPA); id. § 28-3901(c) (establishing enforceable right to truthful information). It defines a “trade practice” as “any act which does or would create, alter, repair, furnish, make available, provide information about, or, directly or indirectly, solicit or offer for or effectuate, a sale, lease or transfer, of consumer goods or services.” Id. § 28-3901(a)(6). Section 28-3904 contains a nonexclusive list of unlawful trade practices. See Atwater v. D.C. Dep't of Consumer & Regulatory Affairs, 566 A.2d 462, 466 (D.C. 1989) (list is nonexclusive). It states that:

It shall be a violation of this chapter, whether or not any consumer is in fact misled, deceived, or damaged thereby, for any person to:
(a) represent that goods or services have a source, sponsorship, approval, certification, accessories, characteristics, ingredients, uses, benefits, or quantities that they do not have;
(b) represent that the person has a sponsorship, approval, status, affiliation, certification, or connection that the person does not have;
. . .
(d) represent that goods or services are of particular standard, quality, grade, style, or model, if in fact they are of another;
(e) misrepresent as to a material fact which has a tendency to mislead;
(e-1) represent that a transaction confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law;
(f) fail to state a material fact if such failure tends to mislead;
(f-1) use innuendo or ambiguity as to a material fact, which has a ...

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