United States District Court, District of Columbia
DAVID E. MANN & VERA D. MANN, Plaintiffs,
CONSTANT OTTRO BAHI, et al., Defendants.
D. BATES United States District Judge.
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.
facts relevant to this claim are largely
undisputed. 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].
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.
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.
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.
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.
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.
Procedural and Statutory Background
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].
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.
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
(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
(f-1) use innuendo or ambiguity as to a material fact, which
has a ...