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«Filed 09/25/13 Page 1 of 27 PageID# 2880 FILED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINL SEP 25 2013 Norfolk Division ...»

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Case 2:12-cv-00080-RGD-DEM Document 184 Filed 09/25/13 Page 1 of 27 PageID# 2880

FILED

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINL SEP 25 2013

Norfolk Division

CLERK. U.S. DISTRICT COURT

NORFOLK VA

SHELLEY FEDERICO, ct al„

Plaintiffs,

Civil No. 2:12cvS0 V, LINCOLN MILITARY HOUSING, LLC, ct al., Defendants.

OPINION AND ORDER

This consolidated action involves mold-related contract and tort claims by several military families against the Lincoln Defendants, which allegedly manage and operate the Tidewater-area military housing communities in which the tenant-plaintiffs resided, and various vendors who allegedly provided repair, remediation and cleaning services in connection with the tenant-plaintiffs' complaints ofmold and water damage in their apartments. The Court has jurisdiction pursuant to 28 U.S.C.§§ 1331. 1332, 1441, and 1446.1 In this action, the plaintiffs seek damages for personal injury and property damage based on various theories ofliability, including breach ofcontract, violation of the Virginia Residential Landlord Tenant Act. Va. Code §§ 55-248.2 et seq. C'VRLTA"), negligence per se based on standards imposed by the VRLTA. negligence per se based on standards imposed by the Virginia Maintenance Code, common law negligence, and common law fraud.

The matteris now before the Court on the Lincoln Defendants' various motions to dismiss or for judgment on the pleadings pursuant to Rule 12(b)(1), Rule 12(b)(6), and Rule 12(c) of the 1The Court has previously determined the existence of federal enclave jurisdiction with respect to the military housing communities involved in this consolidated action. See Fcderico v.

Lincoln Mil. Ilous., 901 F. Supp. 2d 654, 676 (E.D. Va. 2012): see also 28 U.S.C. § 1331. Many of the individual cases in this consolidated action involve diversity jurisdiction as well. Sec 28 U.S.C.

§ 1332. All ofthe complaints were initially filed in state court and subsequently removed to this Court by the defendants pursuant to 28 U.S.C. §§ 1441 and 1446.

Case 2:12-cv-00080-RGD-DEM Document 184 Filed 09/25/13 Page 2 of 27 PageID# 2881 Federal Rules of Civil Procedure. A preliminary question for a number of the claims is whether Lincoln Defendants are entitled to derivative governmental immunity. For the reasons set forth herein, the motions shall be GRANTED in part and DENIED in part, and portions of the consolidated action identified hereinafter shall be DISMISSED for failure to state a claim upon which relief can be granted.

–  –  –

The plaintiffs in this consolidated action are military members and spouses who leased apartments in military housing communities managed and operated by the Lincoln Defendants.

Altogether, they have brought eight separate lawsuits for personal injury and property damage, which have been joined together in this consolidated action following removal from state court. The lead case in this consolidated action, Fcderico 1 (Case No. 2:12cv80), was brought by Shelley Federico. both individually and jointly with her husband, Joe Federico, aUnited States Marine, who lived together with their minor child in military housing beginning in October 2010. Asecond case, Federico II (Case No. 2:12cv596), was brought by Joe Federico individually. Athird case, Chan I (Case No. 2:12cv580), was brought by Monica Chan, both individually and jointly with her husband, Christopher Chan, an enlisted member ofthe United States Navy, who lived together with their three minor children in military housing beginning in October 2010. A fourth case, Chan II (Case No.

2:12cv581), was brought by Christopher Chan individually. A fifth case, Brandsema (Case No.

2:12cv582), was brought by Abbce Brandsema, both individually and jointly with her husband, John Brandsema, a United States Navy Petty Officer, who lived together with their minor child inmilitary

–  –  –

housing beginning in September 2010. Asixth case, Ilardinu (Case No. 2:13cv233), was brought by Nicole Ilarding individually, who lived together with her husband, anenlisted member ofthe United States Navy, and their three minor children in military housing beginning in June 2009. A seventh case, Sullisian (Case No. 2:13cv294), was brought by Meagan Sulligan, both individually andjointly with her husband, George Sulligan, an enlisted member of the United States Army, who lived together with their three minor children in military housing beginning in May 2010. An eighth case, Dclorey (Case No. 2:13cv359), wasbrought by Rachael Delorey, both individually and jointlywith herhusband, Theo Delorey, a United States Navy Hospital Corpsman, and theirtwo minor children in handicap accessible military housing beginning in June 2010.

Asalleged bythe plaintiffs, defendant Lincoln Properly Company ("LPC") isaninternalional property acquisition and management company headquartered in Texas that allegedly manages 31,000 military homes nationwide. Defendant Lincoln Military Housing, LLC ("LMH*') is an affiliated company that allegedly manages and operates more than 4,000 military housing units in the Tidewater area; under the Department of Defense's Military Housing Privatization Initiative ("MIIPI"), LMH and its subsidiaries allegedly manage and operate the military housing under a fifty-year lease program. Defendant Mid-Atlantic Military Families, LLC ("Mid-Atlantic") is a subsidiary of Lincoln Family Communities, LLC ("LFC"), an affiliate or subsidiary of LMH; MidAtlantic is identified as the owner/landlord on the military housing leases with each ofthe plaintiffs.





Defendant Lincoln Property Company Property Management, Inc. ("LPCPM") is an authorized agent for Mid-Atlantic; it manages the performance of all maintenance activities for the military

–  –  –

housing occupied bythe plaintiffs. Finally, the two most recently removed complaints, Sulligan and Delorey. have alleged fraud claims against Stephanie Dozier (known to the Sulligan plaintiffs only as "Stephanie"), a property manager employed by the Lincoln Defendants. These affiliated defendants are referred to collectively in this Opinion and Order as the "Lincoln Defendants."

In support of their motion for dismissal pursuant to Rule 12(b)(1), the defendants have submitted a declaration by Kim McCormick, General Counsel for LPC, inwhich she has addressed the corporate structure of Mid-Atlantic, and the relationship between the Lincoln Defendants and the United States Navy. Inthisdeclaration, Ms. McCormick hasstated that Mid-Atlantic was formed in August 2005 as a public-private venture ("PPV") authorized under the MHPI, with LFC and the Navy as its sole members. The defendants previously filed, under seal, copies of the applicable ground lease with respect to the military housing communities at issue in these cases, the operating agreement under which Mid-Atlantic took ownership ofthe residential units located on the property conveyed by the ground lease, and the property management agreement under which LPCPM was retained tomanage the military housing properties. See generally Federico, 901 F. Supp. 2dat 658describing the corporate structure of Mid-Atlantic and the general terms of the ground lease, operating agreement, and property management agreement).

As alleged by the plaintiffs, defendants Bradley Perkins, Inc. t/a Elite Construction; Belfor USA Group, Inc. d/b/a Belfor Property Restoration; Carpet World of Virginia, Inc. d/b/a Carpel World; Environmental Restorations Inc. d/b/a ScrvePro of Chesapeake; and National Restoration, Inc. d/b/a Peerless Carpet Care and Restoration Services of Virginia Beach are vendors retained by

–  –  –

the Lincoln Defendants to performmold remediation servicesin response to the plaintiffs' reports of moisture damage and possible mold in their residences. Several of the complaints also name unidentified vendors as John Doe defendants. These vendors arc not party to the instant motions.

Each of the eight complaints at issue in this consolidated action involves mold-related contract and tort claims against the Lincoln Defendants, which allegedly manage and operate the Tidewater-area military housing communities in which the tenant-plaintiffs resided. The eight complaints also allege common law negligence and fraud claims against the various vendors who allegedly provided repair, remediation, and cleaning services inconnection with the tenant-plaintiffs' complaints of mold and water damage in their apartments. Several, but not all, of the complaints allege fraud claims against the Lincoln Defendants and various vendors.

The defendants have filed Rule 12(b) motions to dismiss the Federico I and Harding complaints and Rule 12(c) motions for judgment on the pleadings with respect to the other six complaints. Each of these motions has been fully briefed by both sides. The Court held oral argument on these motions on May 8, 2013. The matter is now ripe for a decision.

–  –  –

With respect to one of the consolidated cases, the defendants have filed a motion to dismiss pursuantto Rule 12(b)(1) of the Federal Rulesof Civil Procedure. The plaintiffbears the burdenof establishing the existence of subject matter jurisdiction when challenged under Rule 12(b)(1). See Richmond. Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765,768 (4th Cir. 1991).

In considering a challenge to its subject matter jurisdiction, a district court may look beyond the

–  –  –

pleadings without converting the proceeding to a motion for summary judgment. ]± "The moving party should prevail only ifthe material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id.

With respect to all eight of these consolidated cases, the defendants have filed dispositive motions seeking dismissal of some or all of the plaintiffs' claims for failure to state a claim upon which relief can be granted. In some of the cases, the defendants have filed motions to dismiss pursuant to Rule 12(b)(6) ofthe Federal Rules ofCivil Procedure, and inother cases, the defendants have filed motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The only difference between these two procedural vehicles for the disposition of claims isone oftiming, not ofsubstance. Whereas Rule 12(b)(6) authorizes a defendant to move to dismiss a complaint for "failure to state a claim upon which relief can be granted" before filing a responsive pleading, Rule 12(c) authorizes the defendant to move for judgment on the pleadings on the very same grounds "[ajfter the pleadings are closed—but early enough not to delay trial."

Compare Fed. R. Civ. P. 12(b)(6) withFed. R. Civ. P. 12(c), (h)(2)(B). In practice, thedistinction is immaterial, as the applicable standard of review is the same in cither event. See Edwards v. City of Goldsboro, 178 F.2d 231, 243 (4th Cir. 1999).

In considering motion to dismiss for failure to state a claim upon which relief may be granted, the plaintiffs complaint is to beconstrued in the "light most favorable to the plaintiff." E.

Shore Mkts.. Inc. v. J.D. Assocs. Ltd. P'ship. 213 F.3d 175, 180 (4th Cir. 2000). The defendant has the burden of showing that no claim has been stated. See Edwards. 178 F.3d at 244 ("[A] Rule

–  –  –

12(b)(6) motion should only be granted if, after accepting all well pleaded allegations in the plaintiffs favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief").

"To survivedismissal, the complaint mustcontain 'enough facts to state a claim to reliefthat is plausible on its face.'" Bonds v. Leavitt, 629 F.3d 369, 385 (4th Cir. 2011) (quoting Bell All.

Corp. v. Twomblv. 550 U.S. 544, 570 C2007)): seealso Ashcroft v. Iqbal. 556 U.S. 662,678 (2009).

As the Fourth Circuit has explained, The plausibility standard requires a plaintiff to demonstrate more than "a sheer possibility that a defendant has acted unlawfully." It requires the plaintiff to articulate facts, when accepted as true, that "show" the plaintiff has stated a claim entitling him to relief, i.e., the "plausibility of'entitlement to relief" Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twomblv. 550 U.S. at 557).

Nevertheless, when considering a motion to dismiss, the Court's task is limited to decidingwhether the plaintiff isentitled tooffer evidence in support of his or her claims, not whether the plaintiffwill eventually prevail. Twomblv. 550 U.S. at 563.

In deciding the motion,the Court mayconsiderthe facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may takejudicial notice." Tcllabs. Inc. v. Makor Issues & Rights Ltd.. 551 U.S. 308, 322 (2007).

–  –  –

plaintiffs' tort claims pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction.2 In particular, the defendants assert a defense of derivative governmental immunity pursuant to the doctrine enunciated by the Supreme Court of the United States in the case of Yearslev v. W.A. Ross Construction Company. 309 U.S. 18 (1940), and its progeny. However, as the record nowstands, the plaintiffs have met their burden to show that such immunity is not a bar to their suit because the defendants' alleged actions were not the result of a discretionary function.

Ingeneral, the United States Government enjoys sovereign immunity from suit except where it has waived that immunity. The Federal Tort Claims Act ("FTCA") waived that immunity in regards to certain tort suits, but, most relevant to the instant case, not when the tort is based on the performance of a "discretionary function or duty." 28 U.S.C. § 2680(a). The definition of a "discretionary function" is not a simple matter, sec generally Angle v. United States. 93 1 F. Supp.



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