COMPLAINT
IN THE SUPERIOR COURT OF THE DISTRICT OF XXX
CIVIL DIVISION
XXX,
Plaintiff,
v.
SECOND NORTHWEST COOPERATIVE
HOMES ASSOCIATION, INC.
Defendant.
Case No.: XXX
Judge: XXX
Next Event: Initial Hearing
XXX
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S
COMPLAINT
COMES NOW, Plaintiff XXX, pro se, moves to dismiss Defendant’s
Motion to Dismiss Plaintiff’s Complaint in the instant case and in support thereof, states as
follows:
FACTUAL BACKGROUND
Plaintiff is a stock-holder and member of the Defendant’s Corporation. On or about
XXX, Plaintiff entered an Occupancy Agreement with the Defendant. (See the
Occupancy Agreement).
However, after Plaintiff began living at the property of address XXX th Street,
XXX, the property started developing problems.
Notably, the ceiling was moist, water leaked from the bathroom vent (when it rained, water
leaked through the ceiling above the toilet and dripped on the floor and bathroom), black water
stains appeared to be leaking from the bathroom ceiling; there were animal sounds and
movements in the ceiling, and there was foul odor. (See Photos of the condition of the
Property ). (See Letter of Darlene Johnson, Plaintiff’s mother). There were also cracks on the
ceiling. Further, the Plaintiff’s children had been exposed to bugs that bit them, as a result of the
condition of the house. For instance, on or about XXX, the Plaintiff’s daughter was bitten
by the bugs and developed an allergic reaction. She had to be taken to the ER. (See Plaintiff’s
Email to Defendants-XXX). The bugs caused further harm and/or damage on Plaintiff’s
clothes and furniture. It is also worth noting that the smoke detectors at the premises were not
functional, which further predisposed the Plaintiff and her family to life hazards and/or risks.
(See Plaintiff’s Email to Defendants- XXX. It is also worth noting that the area
around the property is also prone to incidences of insecurity. For instance, Plaintiff’s car bears
gunshot damage. (See Photo showing the damage on Plaintiff’s car).
Plaintiff had earlier notified the Property Manager, but the aforesaid issues remained not
addressed. For instance, Plaintiff repeatedly made requests for an exterminator to deal with the
bugs. However, Defendant failed to the Plaintiff’ request. Further, when Plaintiff requested for a
copy of the Defendant’s By-laws that were missing from the ones she was given when she
moved in, but the officers of the Defendant failed to grant Plaintiff the By-laws.
On or about XXX, Plaintiff filed a Complaint against the Defendant alleging
that the Defendant failed to maintain common areas of the premises. (See Plaintiff’s
Complaint). Accordingly, Plaintiff alleged losses and/or harm suffered including water damage.
Further, as a result of Defendant’s actions and/or inactions, the value of Plaintiff’s property
declined, to Plaintiff’s detriment. In that regard, Plaintiff alleged the following causes of action:
breach of contract, breach of fiduciary duty, negligence, breach of quiet enjoyment, constructive
eviction, breach of implied warranty of habitability, intentional infliction of emotional distress,
and negligent infliction of emotion distress.
On or about XXX, Defendant wrote Plaintiff seeking Plaintiff’s position
regarding the relief Defendant intended to request in the Motion to Dismiss. Plaintiff denied the
relief and indicated that she would oppose the said Motion.
On or about XXX, Defendant filed a Motion to Dismiss the Plaintiff’s
Complaint. (See Defendant’s Motion to Dismiss Plaintiff’s Complaint).
Plaintiff hereby files this Opposition to the said Motion.
ARGUMENTS
I. STANDARD OF REVIEW
The standard applicable to motions pursuant to Super. Ct. Civ. R. 12(b)(6) to dismiss a
complaint for failure to state a claim upon which relief may be granted was correctly articulated
by the trial judge in her order granting the motion: In deciding a motion to dismiss, the [c]ourt
accepts as true all allegations in the Complaint and views them in a light most favorable to the
nonmoving party. Owens v. Tiber Island Condominium Ass’n, 373 A.2d 890 (D.C. 1977).
Dismissal is impermissible unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of her claim, which would entitle her to relief. Conley v. Gibson, 355 U.S. 41,
41-45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Abdullah v. Roach, 668 A.2d 801 (D.C. 1995).
Further, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Potomac Dev.
Corp. v. District of Columbia, 28 A.3d 531, 544 (D.C.2011) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
II. RESPONSE TO DEFENDANT’S SPECIFIC ALLEGATIONS
A. Breach of Contract
Defendant alleges that Plaintiff failed to state a valid claim for breach of contract. (See
Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss, pp.
4-5). Specifically, Defendant contends that Plaintiff failed to cite specific sections of the
Agreement that Defendant breached. Further, Defendant alleges that the Agreement contains no
provision or duties regarding “common areas”.
“The elements of a breach of express warranty, or contract, claim are: ‘(1) a valid contract
between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty;
and (4) damages caused by breach.’” Wetzel v. Capital City Real Estate, LLC, 73 A.3d 1000,
1005 (D.C. 2013)
In the instant action, Plaintiff avers that contrary to Defendant’s assertions, she has proven
all elements of the breach of contract in her Complaint. It is evident that there was a contract
entered between the parties. This contract created obligations for the Defendant. For instance,
under Article 9 of the Agreement entered between Plaintiff and Defendant, Defendant stated that
it will “provide necessary management, operation, and administration of the project”. (See the
Occupancy Agreement). Defendant breached the said obligation(s) by failing to repair the
leakages on Plaintiff’s ceiling. Defendant also failed to address the issue of bugs and/or rodents
on Plaintiff’s ceiling. These are examples of how the Defendant breached its duty. As a result of
the Defendant’s inaction, Plaintiff suffered damage(s). For instance, there was extensive
damages on Plaintiff’s clothes and furniture. Besides, Plaintiff had to withstand water leaking
from her ceiling, foul odor from the property, and itchy scalp from the bugs that dropped on
Plaintiff’s hair (and that of her children).
B. Breach of Fiduciary Duty
Defendant alleges that Plaintiff has not provided any factual basis to show that the
Defendant has a duty to maintain any common areas. (See Memorandum of Points and
Authorities in Support of Defendant’s Motion to Dismiss, pp. 6-7).
“The elements of an action for professional negligence are the same as those of an ordinary
negligence action. The plaintiff bears the burden of presenting evidence which establishes the
applicable standard of care, demonstrates that this standard has been violated, and develops a
causal relationship between the violation and the harm complained of.” Battle v. Thornton, 646
A.2d 315, 319 (D.C. 1994) (citing O’Neil v. Bergan, 452 A.2d 337, 341 (D.C. 1982)). “To make
a legally cognizable claim of breach of fiduciary duty under District of Columbia law, a plaintiff
must allege facts sufficient to show (1) the existence of a fiduciary relationship; (2) a breach of
the duties associated with the fiduciary relationship; and (3) injuries that were proximately
caused by the breach of the fiduciary duties.” Millennium Square Residential Ass’n v. 2200 M St.
LLC, 952 F. Supp. 2d 234, 248 (D.D.C. 2013). “District of Columbia law has deliberately left the
definition of ‘fiduciary relationship’ flexible, so that the relationship may change to fit new
circumstances in which a special relationship of trust may properly be implied.” Id. (citing
Teltschik v. Williams & Jensen, PLLC, 683 F. Supp. 2d 33, 46 (D.D.C. 2010)). Thus, to survive a
motion to dismiss on both professional negligence and breach of fiduciary duty claims, plaintiff
must allege a duty of care, breach, proximate causation, and damages.
In the instant action, Plaintiff alleges that Defendant owed a duty of special care to Plaintiff.
The mission statement of the Defendant raises several obligations of the Defendant. Notably, the
mission statement provides thus: “to maintain buildings and property that are safe, secure,
accessible, and affordable; to upgrade when necessary the existing units, buildings/building
systems, grounds and appliances.” (See Defendant’s Mission, Vision, and Value Statement,
p.1). The mission also provides that the Defendant shall “improve the quality of the business
operation”. Id. Further, the Defendant commits itself to “respond to concerns of staff and
members and deal with them in a reasonable time frame”. Id. Accordingly, Plaintiff observes that
the Defendant breached the said duty as already alleged hereinabove. Notably, Defendant failed
and/or delayed to repair the leakages on Plaintiff’s ceiling. Defendant also failed to address the
issue of bugs and/or rodents on Plaintiff’s ceiling. These are examples of how the Defendant
breached its duty. As a result of the Defendant’s inaction, Plaintiff suffered damage(s). For
instance, there was an extensive damage on Plaintiff’s clothes and furniture. Besides, Plaintiff
had to withstand water leaking from her ceiling, foul odor from the property, and itchy scalp
from the bugs that dropped on Plaintiff’s hair (and that of her children).
C. Negligence
Defendant alleges that Plaintiff failed to state a claim that Defendant acted negligently. (See
Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss, pp.
7-8). Specifically, Defendant alleges that Plaintiff has not shown how Defendant breached the
duty of care. Defendant further alleged that the Plaintiff’s negligence claim is similar to the
breach of fiduciary duty claim, and that it should be dismissed in that regard.
To prove negligence, Plaintiffs must show three elements: (1) “a duty of care owed by the
defendant to the plaintiff,” (2) “a breach of that duty by the defendant,” and (3) “damage to the
interests of the plaintiff, proximately caused by the breach.” District of Columbia v. Cooper, 483
A.2d 317, 321 (D.C.1984); Pannell v. District of Columbia, 829 A.2d 474, 479 (D.C.2003).
As already pointed out hereinabove, the mission statement of the Defendant raises several
obligations of the Defendant. Notably, the mission statement provides thus: “to maintain
buildings and property that are safe, secure, accessible, and affordable; to upgrade when
necessary the existing units, buildings/building systems, grounds and appliances.” (See
Defendant’s Mission, Vision, and Value Statement, p.1). The mission also provides that the
Defendant shall “improve the quality of the business operation”. Id. Further, the Defendant
commits itself to “respond to concerns of staff and members and deal with them in a reasonable
time frame”. Id.
The Defendant’s vision statement also states thus: “we believe that all members should be
treated with respect”. (See Defendant’s Mission, Vision, and Value Statement, p.1). Defendant
further states the following in their vision statement “we will exercise honesty and integrity in all
relationships with members, employees and community.” Id. Interestingly, the value statement
proceeds to state “we believe that a healthy environment is crucial to sustaining the quality of our
lives and community.” Id.
Defendant breached the said obligation(s) by failing to repair the leakages on Plaintiff’s
ceiling. Defendant also failed to address the issue of bugs and/or rodents on Plaintiff’s ceiling.
These are examples of how the Defendant breached its duty. As a result of the Defendant’s
inaction, Plaintiff suffered damage(s). For instance, there was extensive damages on Plaintiff’s
clothes and furniture. Besides, Plaintiff had to withstand water leaking from her ceiling, foul
odor from the property, and itchy scalp from the bugs that dropped on Plaintiff’s hair (and that of
her children).
D. Breach of Quiet Enjoyment
Defendant alleges that failed to state a claim to support a finding of breach of quiet
enjoyment because Plaintiff continues to stay in the same property. (See Memorandum of
Points and Authorities in Support of Defendant’s Motion to Dismiss, pp. 8-9). Defendant
further alleges that there was no eviction or disturbance that justify Plaintiff’s claim.
Under DC law, a disturbance of quiet enjoyment is sufficient ground for the claim of a
breach of quiet enjoyment. See Hyde v. Brandler, 118 A.2d 398, 400 (D.C. 1955).
In the instant action, Plaintiff points out that under Article 6 of the Occupation Agreement,
the Defendant committed to ensure the Plaintiff has peaceful possession of the property. The
Defendant disturbed Plaintiff’s quiet enjoyment of the property by failing to address the issues in
Plaintiff’s property. Plaintiff had complained that the ceiling was moist, water leaked from the
bathroom vent (when it rained, water leaked through the ceiling above the toilet and dripped on
the floor and bathroom), black water stains appeared to be leaking from the bathroom ceiling;
there were animal sounds and movements in the ceiling, and there was foul odor. Accordingly, as
a result of the condition of the house, the Plaintiff’s children had been exposed to bugs that bit
them, as a result of the condition of the house. The bugs caused further harm and/or damage on
Plaintiff’s clothes and furniture. This, Plaintiff avers, amounts to a breach of quiet enjoyment.
E. Constructive Eviction
Defendant alleges that failed to state a claim that she was constructively evicted from the
property. (See Memorandum of Points and Authorities in Support of Defendant’s Motion to
Dismiss, pp. 9-11). Specifically, Defendant alleges that the acts alleged by Plaintiff did not
deprive Plaintiff of the enjoyment of the property.
An actual eviction is, traditionally, some physical disturbance in a tenant’s possession by the
landlord. See, A. Cunningham, W. Stoebuck D. Whitman, The Law of Property 296 (1984)); see
also Hyde v. Brandler, 118 A.2d 398, 400 (D.C. 1955) (stating that covenant of quiet enjoyment
is “not broken unless there is an eviction from, or some actual disturbance in, the possession by
the landlord”) (emphasis added). “Constructive eviction, like actual eviction, is a violation of the
covenant of quiet enjoyment implied in leases.” Weisman v. Middleton, 390 A.2d 996, 1001
(D.C. 1978).
Plaintiff avers that there was physical disturbance on the premises, which is necessary to
prove constructive eviction. This situation affected Plaintiff’s enjoyment of possession. Notably,
Defendant failed to address the issues in Plaintiff’s property. Plaintiff had complained that the
ceiling was moist, water leaked from the bathroom vent (when it rained, water leaked through
the ceiling above the toilet and dripped on the floor and bathroom), black water stains appeared
to be leaking from the bathroom ceiling; there were animal sounds and movements in the ceiling,
and there was foul odor. Accordingly, as a result of the condition of the house, the Plaintiff’s
children had been exposed to bugs that bit them, as a result of the condition of the house. The
bugs caused further harm and/or damage on Plaintiff’s clothes and furniture. This, Plaintiff avers,
amounts to constructive eviction.
F. Breach of Warranty of Habitability
Defendant alleges that it is not subject to the warrant of habitability. (See Memorandum of
Points and Authorities in Support of Defendant’s Motion to Dismiss, pp. 11-13). Defendant
further alleges that it is a housing cooperative, not a landlord, and is therefore not subject to the
DC Housing Regulations.
The warranty of habitability is implied in leases, and, as is true of most modern warranties, a
claim for a breach is essentially a contract cause of action. See Berman v. Watergate West, Inc.,
391 A.2d 1351, 1355 (D.C. 1978).
In the instant action, the Defendant’s “Second Northwest New Member’s Orientation
Information Material” provides expressly that “the individual is both a tenant because of their
lease with the corporation, and an owner because of their stock ownership and participation in
group governance.” (See Second Northwest New Member’s Orientation Information
Material- Exhibit B). Further, the Defendant’s Handbook provides expressly that the
Occupancy Agreement is “similar to a rental lease.” (See Cooperative Handbook, p. 9).
Further, Article VIII of the Defendant’s By-Laws provides that the Defendant is subject to
the rights, powers, and privileges of HUD. (See By-Laws Second Northwest Cooperative
Homes Association). Further, under Section 8 of Article XI , the Defendant committed itself to
monitor the services it offers by the Professional Management Agent of the housing
development. Id.
It follows, Defendant is subject to a warrant of habitability claim, by virtue of its By-laws
and company’s documentations that identify it both as a landlord and a housing cooperative.
G. Intentional Infliction of Emotional Distress
Defendant alleges that the Plaintiff fails to provide facts to show that the Defendant’s
conduct amounted to an intentional infliction of emotional distress. (See Memorandum of
Points and Authorities in Support of Defendant’s Motion to Dismiss, pp. 13-14).
“ ‘To succeed on the claim of intentional infliction of emotional distress, a plaintiff must
show (1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or
recklessly (3) causes the plaintiff severe emotional distress.’ ” District of Columbia v. Tulin, 994
A.2d 788, 800 (D.C.2010) (quoting Minch v. District of Columbia, 952 A.2d 929, 940
(D.C.2008)). “Extreme and outrageous” conduct is that conduct which is beyond all possible
bounds of decency. See Bernstein v. Fernandez, 649 A.2d 1064, 1075 (D.C. 1991) (quoting
Restatement (Second) of Torts § 46, comment d.).
In the instant action, Plaintiff avers that the Defendant’s failure to attend to the issues at
Plaintiff’s property is conduct that is beyond all possible bounds of decency. Specifically,
Defendant had been obliged to maintain buildings and property that are safe, secure, accessible,
and affordable; to upgrade when necessary the existing units, buildings/building systems,
grounds and appliances.” (See Defendant’s Mission, Vision, and Value Statement, p.1).
Further, the Defendant was expected to provide quiet enjoyment of the Plaintiff’s property.
However, Defendant intentionally refused and/or delayed from addressing Plaintiff’s genuine
and life threatening issues, thus leading to Plaintiff’s injuries and/or harm.
H. Negligent infliction of emotional distress
Defendant alleges that Defendant’s relationship with Plaintiff is not of a nature that creates
an obligation to care for Plaintiff’s emotional well-being. (See Memorandum of Points and
Authorities in Support of Defendant’s Motion to Dismiss, pp. 15-16). Defendant further
claimed that it cannot reasonably be held responsible for the emotional well-being of the
Plaintiff.
To establish a prima facie case of negligent infliction of emotional distress, plaintiff must
show that he was “in the zone of physical danger” created by defendants’ conduct and was caused
“to fear for his or her own well-being.” Williams v. Baker, 572 A.2d 1062, 1067 (D.C. 1990).
The plaintiff must also show that the emotional distress is “serious and verifiable.” Jones v.
Howard Univ., 589 A.2d 419, 424 (D.C. 1991).
In the instant action, Plaintiff faced physical danger, threat, risk and/or harm as a result of
Defendant’s failure to address the issues in Plaintiff’s property. For example, Plaintiff’s children
were bitten by bugs. Her daughter had developed an allergic reaction in that regard, and had to
be rushed to the ER. Further, the mold and odor from the leaking ceiling posed health risks to
Plaintiff and her family. Also, the malfunctioning smoke detecting apparatus posed serious threat
of fire to Plaintiff’s house. Accordingly, Plaintiff avers that there is sufficient proof of the claim
of negligent infliction of emotional distress.
I. Private Nuisance
Defendant alleges that Plaintiff’s Complaint does not contain facts sufficient to find that
Defendant’s actions have a “degree of permanence” so that they give rise to a finding that a
private nuisance exists. (See Memorandum of Points and Authorities in Support of
Defendant’s Motion to Dismiss, pp. 16-17).
To be actionable as a nuisance, the offending thing must be marked by “some degree of
permanence” such that the “continuousness or recurrence of the things, facts, or acts which
constitute the nuisance,” give rise to an “unreasonable use.” Reese v. Wells, 73 A.2d 902 (D.C.
1950).
In the instant action, the leaking of the ceiling, the mold, the bugs, the odor, the
malfunctioning smoke detector had some degree of permanence. The said issues were recurring
in the Plaintiff’s premises. Accordingly, Plaintiff is entitled to bring a claim for private nuisance.
CONCLUSION
WHEREFORE, Plaintiff ,XXX, prays that this Honorable Court enter
an appropriate Order dismissing Defendant’s Motion to Dismiss Plaintiff’s Complaint. Plaintiff
also prays this Honorable Court grants any other relief that the Court deems just.
Respectfully submitted,
DATED: __
Signature
XXX
[ENTER YOUR ADDRESS]
Pro Se
CERTIFICATE OF MAILING
Defendant affirms that a copy of the above was served upon the Defendant to this action by
electronic and/or U.S. mail to her respective address as stated below:
[ENTER ADDRESS]
Signature
XXX
[ENTER YOUR ADDRESS]
Pro Se
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