Allen v. Cypress Village, LTD. et al
MEMORANDUM OPINION AND ORDER that Dfts' 37 Partial Motion to Dismiss the Amended Complaint is GRANTED in part and DENIED in part as follows: (1) The motion is GRANTED as to all claims brought against Dft Judith C. Van Dyke, and said Dft is DIS MISSED as a party to this lawsuit; (2) The motion is GRANTED as to the state law claim against Dfts for implied breach of warranty of habitability, and said claim is DISMISSED; (3) The motion is DENIED as to the state law claim against Dfts for the tort of outrage; and (4) The motion is DENIED as to Dfts' argument for dismissal of The Bennett Group. Signed by Chief Judge William Keith Watkins on 6/27/2011. (Attachments: # 1 Civil Appeals Checklist) (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CHARISSE D. ALLEN,
CYPRESS VILLAGE, LTD., et al.,
CASE NO. 3:10-CV-994-WKW
MEMORANDUM OPINION AND ORDER
In a prior Order, the court sua sponte ordered Plaintiff Charisse D. Allen to
replead her shotgun complaint. She complied with the deadline for repleading, and
now pending is Defendants’ partial motion to dismiss the amended complaint, filed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. # 37.) The
motion is accompanied by a brief. (Doc. # 38.) The motion to dismiss argues for
dismissal of all claims against Defendants Judith C. Van Dyke and The Bennett
Group, and argues for dismissal of the claims for implied breach of warranty of
habitability and the tort of outrage against all Defendants. Plaintiff filed a response,
conceding the dismissal of one Defendant (Judith C. Van Dyke), but Plaintiff
otherwise opposes the motion. (Doc. # 39.) For the reasons to follow, the motion is
due to be granted in part and denied in part.
I. JURISDICTION AND VENUE
Subject matter jurisdiction is proper pursuant to 28 U.S.C. §§ 1331 and 1367.
Personal jurisdiction and venue are not disputed, and there are adequate allegations
in support of both.
II. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against
the legal standard set forth in Rule 8: “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2). When
evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must take “the
factual allegations in the complaint as true and construe them in the light most
favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008). However, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009).
“To 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.’” Iqbal,
129 S. Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Determining whether a complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 1950 (brackets added; citation omitted).
“[F]acial plausibility” exists “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. (citing Twombly, 550 U.S. at 556). The standard also “calls for enough
fact to raise a reasonable expectation that discovery will reveal evidence” of the claim.
Twombly, 550 U.S. at 556. While the complaint need not set out “detailed factual
allegations,” it must provide sufficient factual amplification “to raise a right to relief
above the speculative level.” Id. at 555; see also James River Ins. Co. v. Ground
Down Eng’g, Inc., 540 F.3d 1270, 1274 (11th Cir. 2008) (Twombly formally retired
“the often-criticized ‘no set of facts’ language previously used to describe the motion
to dismiss standard.” (citation omitted)).
Since August 2003, Plaintiff has leased an apartment in the Cypress Village
Apartments complex located in Tuskegee, Alabama. (Am. Compl. ¶¶ 4, 5 (Doc.
# 35).) The complex receives federal funds from the United States Department of
Agriculture and/or the United States Department of Housing and Urban Development,
and Plaintiff qualifies for rent reductions based upon her mental disabilities that
prevent her from working. (Am. Compl. ¶¶ 6, 13, 25.) Plaintiff names eight
Defendants, who are both individuals and corporations affiliated with the ownership
and management of the complex. (Am. Compl. ¶ 3(a)-(h).) She brings federal law
claims, pursuant to the Fair Housing Act, 42 U.S.C. § 3601 et seq., and § 504 of the
Rehabilitation Act, and five state law claims. (Am. Compl. ¶ 1.) Plaintiff alleges that
Defendants have engaged in hostile tactics against her, to include multiple wrongful
attempts to evict her, “abusive and offensive” language, efforts to deny her rent
reductions, and selective enforcement of rules. (Am. Compl. ¶¶ 7-11.) She further
contends that the toilet in her apartment is malfunctioning, that her apartment is
infested with mold and mildew, and that Defendants have ignored her requests for
repairs. (Am. Compl. ¶¶ 12-14.) Some Defendants are charged with committing these
acts, while others are faulted for failing to intervene. (See, e.g., Am. Compl. ¶¶ 11,
In the pending motion to dismiss, Defendants challenge the sufficiency of the
Amended Complaint’s allegations to state a claim for relief against Defendants Judith
C. Van Dyke and The Bennett Group. Defendants further contend that two of the state
law claims, namely, the claims for implied breach of warranty of habitability and
outrage, fail to state a claim for relief as to all Defendants.
First, Defendants contend that all of the allegations against Ms. Van Dyke stem
from her alleged deficient legal representation of The Bennett Group on matters
pertaining to “federal housing laws,” but that Ms. Van Dyke’s “status” as attorney for
The Bennett Group “does not give rise to a plausible basis for recovery against her .
. . .” (Doc. # 38, at 4.) In response, Ms. Allen “concedes” that the claims are due to
be dismissed against Ms. Van Dyke, “without further argument.” (Doc. # 39, at 1.)
Based upon Ms. Allen’s concession, Defendants’ motion to dismiss all claims against
Ms. Van Dyke will be granted.
Second, Defendants contend that the Amended Complaint improperly seeks to
hold The Bennett Group liable for the acts of Ms. Mayberry and Ms. Banks. They
assert that the mere fact that The Bennett Group is the parent company of the company
(Cypress Village LTD) that owns the apartment complex (Cypress Village
Apartments) “does not support a plausible theory against” The Bennett Group because
Ms. Mayberry and Ms. Banks were employed by an independent management
company (Charter Property Management Company, Inc.). (Doc. # 38, at 4.)
Defendants cite no authority for their argument and fail to discuss any of the claims
specifically. In particular, they fail to address Plaintiff’s allegations that certain
Defendants were put on notice of Plaintiff’s complaints and failed to act or to discuss
the doctrine of vicarious liability, which is permitted, for example, under the Fair
Housing Act. See generally Meyer v. Holley, 537 U.S. 280 (2003). Defendants’
cursory and unsupported argument is reason enough to deny the motion to dismiss.
See United States v. Belfast, 611 F.3d 783, 821 (11th Cir. 2010) (“We routinely
decline to address . . . cursory arguments, and this case presents no exception.”).
Defendants’ motion to dismiss all claims against The Bennett Group will be denied.
Third, Defendants contend that Alabama law does not recognize a cause of
action for “implied warranty of habitability in leases of residential apartments,” as
alleged in Count H.1 (Doc. # 38, at 5.) The decisions relied upon by Defendants
support their position. See Osborn v. Brown, 361 So. 2d 82, 90 (Ala. 1978) (refusing
“to recognize the existence of an implied warranty of habitability in leases of new
residential apartments”); see also Ex parte Coleman, 705 So. 2d 392, 397 (Ala. 1997)
(“[A]lthough the Court of Civil Appeals stated that it declined to adopt what it called
the equivalent of an implied warranty of habitability in the landlord-tenant context,
stating that it agreed with this Court that the adoption of new laws is a function for the
Legislature, by holding as it did, the Court of Civil Appeals did exactly what it
professed not to do.”); see also Murphy v. Hendrix, 500 So. 2d 8, 8 (Ala. 1986)
(“While we could recognize an implied warranty of habitability, . . . we are of the
opinion that the best forum for making a change in our law is the legislature.”). Ms.
Allen, on the other hand, responds in conclusory fashion that the facts alleged state a
Count H (as styled by Plaintiff) alleges that Plaintiff’s leased apartment is uninhabitable
because it is infested with mold and mildew and does not have a “functioning toilet.” (Am.
Compl. ¶ 37.)
claim for breach of an implied warranty of habitability. (Doc. # 39 ¶ 13.) She neither
addresses the cases relied upon by Defendants nor cites any opposing authority.
Accordingly, based upon the authority cited by Defendants, Defendants’ motion to
dismiss Count H will be granted.
Fourth and finally, Defendants argue that the tort of outrage does not
encompass the conduct alleged in Ms. Allen’s Amended Complaint.2 (Doc. # 38, at 56.) The tort of “outrage is a very limited cause of action that is available only in the
most egregious circumstances.” Thomas v. BSE Indus. Contractors, Inc., 624 So. 2d
1041, 1044 (Ala. 1993) (citing nineteen cases for support that the Alabama Supreme
Court “has held in a large majority of the outrage cases reviewed that no jury question
was presented”). And, only a handful of factual scenarios have been held to fall
within this tort’s purview. See Little v. Robinson, No. 1090428, 2011 WL 1334416,
at *4 (Ala. 2011) (published) (discussing the three limited types of conduct held
actionable under the tort of outrage, as set out in Potts v. Hayes, 771 So. 2d 462, 465
(Ala. 2000)). Notwithstanding the tort’s limitations, the Alabama Supreme Court
recently observed, “That is not to say . . . that the tort of outrage is viable in only the
In Count J, Plaintiff alleges that Defendants are liable for the tort of outrage based upon
the acts of Ms. Banks and Ms. Mayberry. Those acts include filing “several false police reports
against [Plaintiff],” filing “several wrongful eviction notices against [Plaintiff],” threats “to
wrongfully raise [Plaintiff’s] rent repeatedly,” and entreaties to other tenants “to harass, bother
and annoy [Plaintiff].” (Am. Compl. ¶ 41.)
three circumstances noted in Potts[,]” 771 So. 2d at 462. Id. at *4 (observing that it
recently had affirmed a judgment on a tort-of-outrage claim in a fourth situation).
Plaintiff no doubt faces a high hurdle on her tort of outrage claim. However,
based upon Little, the court is reluctant to dismiss the claim at the pleading stage
based upon an argument that the facts of this case do not fall within the categories of
outrageous behavior previously identified by the Alabama Supreme Court.
Additionally, it is noteworthy that the Alabama Supreme Court decision that
Defendants argue is most analogous to this case was decided at the summary judgment
stage based upon the evidence, not at the motion to dismiss stage. (Doc. # 38, at 6.)
While it is a close call, applying Twombly’s plausibility standard, see 550 U.S. at 570,
and given the limited argument from Defendants, the court will permit the claim to go
Based upon the foregoing, it is ORDERED that Defendants’ partial motion to
dismiss the amended complaint (Doc. # 37) is GRANTED in part and DENIED in part
The motion is GRANTED as to all claims brought against Defendant
Judith C. Van Dyke, and said Defendant is DISMISSED as a party to this lawsuit;
the motion is GRANTED as to the state law claim against Defendants for
implied breach of warranty of habitability, and said claim is DISMISSED;
the motion is DENIED as to the state law claim against Defendants for
the tort of outrage; and
the motion is DENIED as to Defendants’ argument for dismissal of The
DONE this 27th day of June, 2011.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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