United States District Court, District of Columbia
SARAH S. PLEZNAC, Plaintiff,
v.
EQUITY RESIDENTIAL MANAGEMENT, L.L.C., Defendant.
MEMORANDUM OPINION
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE.
In
September 2017, plaintiff Sarah Pleznac filed this putative
class action against her former landlord, Equity Residential
Management, L.L.C. The gist of Pleznac's complaint is
that Equity perpetrated a “bait-and-switch”
scheme that fooled her and other tenants into paying higher
rents than they expected, and that it retaliated against her
for complaining about its practices. Equity seeks to dismiss
all of Pleznac's claims under Federal Rule of Civil
Procedure 12(b)(6), contending that she has failed to
adequately plead several of her claims and that others are
time-barred. The Court will grant Equity's motion with
respect to some of Pleznac's claims and deny it for
others.
I.
Background
Equity
is an S&P 500 company that owns and manages hundreds of
apartment buildings around the country, including several in
the District of Columbia. Ms. Pleznac lived in one of its
D.C. properties, 3003 Van Ness, from 2013 to 2017. According
to Plenzac, Equity's scheme unfolded as follows: Sometime
in January 2013, she saw an apartment advertised at 3003 Van
Ness for $1, 693 per month. Interested, Pleznac contacted
Equity's rental office and applied to lease the
apartment. Equity drew up a lease and told her that the
District's rent-control statute applied to the property,
meaning that rent could only rise by the amount of the
increase in the Consumer Price Index (“CPI”) plus
an additional two percentage points. Pleznac signed the lease
and moved in.
But
Pleznac claims that, throughout this process, Equity
obfuscated that the advertised rent was heavily discounted:
the lease included a so-called “rent concession”
of some $1, 000 per month from the “base rate.”
To Pleznac's apparent surprise, when her yearlong lease
was set to expire, she was notified that her rent would rise
by 2% over the CPI multiplied by the higher base rate-not by
the lower discounted rate-resulting in a significant hike.
Equity then used the threat of that higher rent-combined with
the “great expense and inconvenience” of moving
after just one year-to “coerce[]” her to sign
several subsequent one-year leases with rents higher than she
expected when she signed the initial lease. Notice of Removal
Ex. A (“Compl.”), ECF No. 1, ¶ 52. She
alleges that Equity treated thousands of its tenants
similarly.
Pleznac
claims that Equity's practices violated the District of
Columbia Consumer Protection Procedures Act
(“CPPA”), D.C. Code § 28-3904, and amounted
to a breach of contract, intentional infliction of emotional
distress, and fraud. She also alleges that, when she and
other tenants complained about Equity's practices, the
company retaliated by filing frivolous lawsuits against them
for nonpayment of rent. It would also report false
information to credit reporting agencies-including that the
tenant had been evicted and that she owed Equity overdue
rent-and then refuse to correct those knowingly false reports
after tenants contested them. In Pleznac's view, these
suits against tenants amounted to malicious prosecution. And
the false reports to credit agencies were both defamatory and
contrary to the Fair Credit Reporting Act, a federal statute
that requires entities that relay information to consumer
reporting agencies to diligently investigate disputed
credit-related information and promptly correct any errors,
see 15 U.S.C. § 1681s-2.
Pleznac
initially filed suit in D.C. Superior Court, but Equity
removed the case to federal court. The Court upheld the
removal over Pleznac's objection, finding that the case
was removable under the Class Action Fairness Act because it
involved over 100 potential class members and put at least $5
million at issue. Op. & Order, ECF No. 19, at 4-5 (May 8,
2018). Equity has now moved to dismiss all of Pleznac's
claims on various grounds pursuant to Federal Rule of Civil
Procedure 12(b)(6).
II.
Legal Standard
To
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. at 556.
III.
Analysis
A.
CPPA and Fraud (Counts 1, 7, 8, and 9)
Equity
seeks to dismiss Pleznac's CPPA and fraud claims on the
basis that they are untimely. The Court agrees that dismissal
of these claims is proper.
Under
D.C. law, a plaintiff must bring a claim under the CPPA or
for fraud within three years from the time when her right to
maintain the action accrues. See D.C. Code §
12-301(8); Bradford v. George Washington University,
249 F.Supp.3d 325, 335 (D.D.C. 2017). A claim accrues when
the plaintiff has “actual notice of her cause of
action.” Medhin v. Hailu, 26 A.3d 307, 310
(D.C. 2011)). Pleznac admits that she had notice of
Equity's allegedly deceptive actions when it presented
her with a notice in September 2013 showing what her rent
would be if she renewed her initial lease. Equity
straightforwardly contends that, because that date was more
than three years before Pleznac filed her complaint in
September 2017, her claims are time-barred.
Pleznac
insists, however, that her claims remain viable because
Equity committed a “continuing tort” against her,
which included some tortious acts within the limitations
period. The continuing tort doctrine allows recovery for
extended harms that began outside of the applicable
limitations period. Under District of Columbia law, the
doctrine applies only where a plaintiff suffers “(1) a
continuous and repetitious wrong, (2) with damages flowing
from the act as a whole rather than from each individual act,
and (3) at least one injurious act . . . within the
limitation period.” Beard v. Edmondson &
Gallagher, 790 A.2d 541, 547-48 (D.C. 2002).
Pleznac's
reliance on the continuing tort doctrine is misplaced. The
doctrine applies only where the claimed “injury might
not have come about but for the entire course of
conduct.” John McShain, Inc. v. L'Enfant
Plaza Props., Inc., 402 A.2d 1222, 1231 n.20 (D.C. 1979)
(emphasis added). For example, D.C. courts have held that
certain subterranean encroachments onto someone else's
land are “continuous, ” such that a plaintiff can
seek redress for any damage caused by the encroachment within
the limitations period even if he first became aware of the
encroachment outside of the limitations period.
L'Enfant Plaza East, Inc. v. John McShain, Inc.,
359 A.2d 5, 6 (D.C. 1976). But that sort of case is a rare
exception to the general rule that, when a plaintiff suffers
an identifiable legal wrong and experiences “[a]ny
appreciable and actual harm flowing from the
[defendant's] conduct, ” her claim accrues at that
moment. Beard, 790 A.2d at 546 (alterations in
original) (quoting Hendel v. World Plan Exec.
Council, 705 A.2d 656, 661 (D.C. 1997)). The fact that
an injury continues into the limitations period-or
even that new and unexpected injuries arise-does not allow
her to sue for the initial wrong that occurred outside the
limitations period. This is why the D.C. Court of Appeals has
held that claims based on alleged sexual abuse accrue when a
plaintiff is first aware of the fact of abuse, not when he
later “appreciated the full impact of [the alleged]
misconduct.” See Cevenini v. Archbishop of
Wash., 707 A.2d 768, 772 (D.C. 1998). And why it has
explained that medical malpractice claims ripen when a
plaintiff first becomes aware of cancer caused by a
doctor's alleged negligence, not when the cancer later
metastasizes and creates more catastrophic harm. Colbert
v. Georgetown Univ., 641 A.2d 469, 475-76 (D.C. 1994)
(en banc).
In
other words, the continuing tort doctrine does not mean
“that accrual should be tolled until the plaintiff
fully appreciates the ‘impact' of the harm directed
at him.” Cevenini, 707 A.2d at 772. Rather,
“once the plaintiff has been placed on notice of an
injury and the role of the defendants' wrongful conduct
in causing it, the policy disfavoring stale claims ...