GALLO v. DISTRICT OF COLUMBIA

Filing 62

MEMORANDUM OPINION resolving Defendant's 54 Motion to Dismiss with Prejudice, Plaintiff's 59 Motion for Leave to File Sur-Reply, and Plaintiff's 60 Motion to Expedite. See attached for more details. SO ORDERED. Signed by Judge Trevor N. McFadden on 11/14/2023. (lctnm3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALEXANDER GALLO,
Plaintiff,
v.

Case No. 1:21-cv-03298 (TNM)

DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
In the early days of the COVID-19 pandemic, the District of Columbia banned landlords
from evicting their tenants. Alexander Gallo, a landlord, now sues the District. He claims that
its ban violated his rights under the Contract and Takings Clauses of the United States
Constitution. Although the Court dismissed his case once, see Gallo v. District of Columbia, 610
F. Supp. 3d 73 (D.D.C. 2022), it granted his motion for reconsideration so he could replead his
Complaint with greater specificity. Gallo v. District of Columbia, No. 1:21-cv-03298 (TNM),
2023 WL 2301961 (D.D.C. Mar. 1, 2023). Despite that opportunity, Gallo’s Complaint remains
deficient. So the Court now grants the District’s renewed motion to dismiss, Mot. to Dismiss
(MTD), ECF No. 54, this time with prejudice.
I.
Gallo owns and manages ten condominium units in the District. See Second Amend.
Compl. (SAC) ¶ 1, ECF No. 50. 1 At issue here, though, is a single unit. Gallo acquired the unit

1

Because the Court is ruling on a motion to dismiss, it assumes the truth of Gallo’s wellpleaded factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A] court must accept
as true all of the allegations contained in a complaint.”).

in this case—what he calls the “Foreclosure Unit”—at a foreclosure sale in February 2020. Id.
¶ 4. When he acquired the unit, it was occupied by its prior owner, Andre Hopkins. Id. ¶ 8.
By buying an inhabited unit at the foreclosure sale, Gallo created an estate at will with
Hopkins as his tenant. D.C. Code § 42-522. 2 This meant that Gallo could terminate the tenancy
“at any time,” id., subject to a requirement that he provide Hopkins “30 days[’] notice in
writing,” id. § 42-3203. Gallo served such notice in March 2020, which, he contends, meant that
Hopkins’s tenancy ended “as of May 5, 2020.” SAC ¶ 4. 3
That same March, the District imposed an “eviction prohibition.” COVID-19 Response
Emergency Amendment Act of 2020, 67 D.C. Reg. 3093, 3102–03 (Mar. 17, 2020) (capitalization
altered). The prohibition had two effects: First, it prohibited evicting tenants “[d]uring a period
of time for which the Mayor has declared a public health emergency.” Id. And second, if a
landlord had filed a complaint against a delinquent tenant but no hearing had yet been held, the

2

The core of Gallo’s relevant changes in the SAC go to this point. He had originally
alleged that “a squatter has been residing [in his condominium] at the District’s invitation for
nearly two years.” Sup. Ct. Compl. ¶ 2, ECF 1-1. And he doubled down on that claim in his
Motion for Reconsideration. Mot. for Reconsideration at 4, ECF No. 20. According to Gallo’s
current pleadings, he did not “invite” Hopkins to take up residence. Id. Nor did the District.
SAC ¶ 8. Rather, Gallo bought the Foreclosure Unit while Hopkins was still living there. Id.
3

The Court notes that the timeline of events in this case is far from clear. Gallo represents
that he purchased the condominium “in February 2020” and that he served the 30-day notice to
quit “in March 2020.” SAC ¶ 4. He claims his service of the 30-day notice in March meant that
Hopkins’s tenancy ended “as of May 5, 2020.” Id. But all dates in March 2020 are more than 30
days prior to May 5, 2020. What’s more, Gallo alleges that his service of the notice came before
the announcement of the eviction prohibition. Id. ¶¶ 4–6. But the prohibition was announced on
March 17, see COVID-19 Response Emergency Amendment Act of 2020, 67 D.C. Reg. 3093,
(Mar. 17, 2020), so the latest the tenancy could have ended was on April 16. None of this makes
much sense. Compounding the confusion is the District’s representation that Gallo actually
acquired the unit in June 2021. MTD at 1. Nonetheless, the Court is required to take Gallo’s
allegations as true and, ultimately, these details make no difference to the failure of Gallo’s
claims on the merits.
2

prohibition effectively continued the hearing for the rest of the public health emergency. Id. at
3102. 4
In May, the District added another wrinkle. It expanded the eviction prohibition with an
“eviction clarification.” Coronavirus Omnibus Emergency Amendment Act of 2020, 67 D.C.
Reg. 5235, 5243 (May 13, 2020) (cleaned up). The March rule had allowed landlords to file
actions in ejectment, and simply postponed any hearing until after the prohibition expired. 67
D.C. Reg. at 3012. But the May rule banned the filing of actions in ejectment altogether. Id. at
5243. Landlords now could not even begin a lawsuit until 60 days after the District’s public
health emergency ended. Id. The practical consequences of this expansion were minimal:
Under both the March and May rules, no actions in ejectment could proceed during the public
health emergency. The primary contribution of the filing ban was to prevent landlords from
filing lawsuits that would spring into effect once the prohibition ended.
But neither the March nor the May rule extinguished any cause of action or immunized
any party from suit. Rather, the rules simply delayed the filing and prosecution of actions in
ejectment within the District. Nothing in either act prohibited the filing of those actions after the
public health emergency was over. Nor did either act immunize tenants for conduct during the
moratoria. And the statute of limitations for all such actions was tolled during this period, see
District of Columbia v. Towers, 260 A.3d 690, 695 (D.C. 2021), so no ejectment claim was
permanently lost.

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That is because D.C. law requires that a hearing in an ejectment action not occur until 30
days after the defendant is served with a summons. D.C. Code § 16-1502(a). But the eviction
prohibition excluded the entire period of a public health emergency from that 30-day period. See
67 D.C. Reg. 3093, 3102. So the prohibition effectively froze the clock on the 30-day period,
which would begin again only after the eviction prohibition lifted.
3

While all this was going on, May 5 came and went. But Hopkins lingered. SAC ¶ 8.
Despite knowing that his lease had ended, id. ¶ 4, he remained in the Foreclosure Unit, id. ¶¶ 8–
10. And he cut off all contact with Gallo, refusing to respond to even mutually beneficial
communications. Id. ¶ 30. By Spring 2021, two tenants in Gallo’s other properties had followed
suit. Id. ¶ 33.
Gallo filed this lawsuit in D.C. Superior Court in November 2021. Sup. Ct. Compl., ECF
No. 1-1. The District quickly removed the case here, ECF No. 1, where it has remained since.
In January 2022, the District moved to dismiss Gallo’s Complaint, ECF No. 6, and the Court
granted that motion. See Gallo, 610 F. Supp. 3d at 91. Yet the Court later granted a motion for
reconsideration when Gallo identified new facts that might have cured the defects the Court
noted about his Complaint. See Gallo, 2023 WL 2301961, at *5. Gallo has therefore filed a new
amended Complaint, see SAC, and the District has again moved to dismiss, ECF No. 54.
II.
A.
“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.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “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. The Court considers “only the facts alleged in the complaint, any
documents either attached to or incorporated in the complaint[,] and matters of which [it] may
take judicial notice.” Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017) (citation
omitted).

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Gallo proceeds without counsel. This triggers special solicitude for him. “A document
filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (cleaned up). More, courts assess a pro se complaint “‘in light of’ all
filings, including filings responsive to a motion to dismiss.” Brown v. Whole Foods Mkt. Grp.,
Inc., 789 F.3d 146, 152 (D.C. Cir. 2015). But pro se plaintiffs must still adequately plead their
complaint consistent with Iqbal. See Atherton v. D.C. Off. of the Mayor, 567 F.3d 672, 681–82
(D.C. Cir. 2009).
B.
The Constitution recognizes two main categories of claims under the Takings Clause.
First, if “the government physically acquires private property for public use.” Cedar Point
Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021). The Government can “physically acquire[]
private property” in various ways. For instance, “when it uses its power of eminent domain to
formally condemn property,” when it “physically takes possession of property without acquiring
title to it,” and “when it occupies property” without possessing the property or the title to it. Id.
A taking also occurs when the Government “requires [a] landowner to submit to the physical
occupation of his land” by a third party, without itself occupying the land. Yee v. City of
Escondido, 503 U.S. 519, 527 (1992) (cleaned up); see also Cedar Point Nursery, 141 S. Ct. at
2072 (recharacterizing this as a physical acquisition). In each case, the Government has taken
the property, and a plaintiff is entitled to “just compensation.” U.S. Const. amend. V.
But the Government may also effect a taking without physically seizing a property.
When the Government “imposes regulations that restrict an owner’s ability to use his own
property,” it may be liable for imposing a so-called regulatory taking. Cedar Point Nursery, 141

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S. Ct. at 2071–72. If a regulation deprives a landowner of “all economically beneficial or
productive use of [his] land,” it is per se a taking, categorically warranting compensation by the
Government. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015–16 (1992).
More often, though, courts must engage in an “essentially ad hoc, factual inquir[y]” under
Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). Id. at 124. Under
that test, Courts determine whether the Government is seeking to “forc[e] some people alone to
bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005). That inquiry focuses on the “economic
impact of the regulation on the claimant and, particularly, the extent to which the regulation has
interfered with distinct investment-backed expectations,” along with “the character of the
governmental action.” Penn Central, 438 U.S. at 124.
Now, the Contract Clause. The Contract Clause provides that “No State shall . . . pass
any . . . Law impairing the Obligation of Contracts.” U.S. Const. art. I, § 10. Courts apply a
two-step test to determine whether a given law violates the Contract Clause. First, they ask
whether the law “operate[s] as a substantial impairment of a contractual relationship.” Sveen v.
Melin, 138 S. Ct. 1815, 1821–22 (2018). To do so, courts look to “the extent to which the law
undermines the contractual bargain, interferes with a party’s reasonable expectations, and
prevents the party from safeguarding or reinstating his rights.” Id. at 1822. If the law
substantially impairs the contractual relationship, courts then ask whether it “is drawn in an
appropriate and reasonable way to advance a significant and legitimate public purpose.” Id.
(internal quotation marks omitted). When a law violates the Contract Clause, it is simply void.
Carter v. Greenhow, 114 U.S. 317, 322–23 (1885). Individuals have no right to affirmative

6

relief under the Contract Clause; rather, they can simply sue to enforce the contract itself,
disregarding the unconstitutional law. Id. at 322.
Finally, Gallo brings a claim under the District’s writ of waste statute. That statute,
whose language is nearly identical to the 1278 Statute of Gloucester, Nelbach v. Nelbach, 291
A.3d 1129, 1134 (D.C. 2023), provides that
A man from henceforth shall have a writ of waste in the chancery against him
that holdeth by law, or otherwise for term of life, or for term of years; and he
which shall be attainted of waste, shall lease the thing that he hath wasted, and
moreover shall recompense thrice so much as the waste shall be taxed at.
D.C. Code § 42-1601. In other words, a landlord may sue a tenant who wastes, or
permanently damages, Nelbach, 291 A.3d at 1137, his property. And if he prevails, the tenant
shall “lease”—in modern language, “lose,” id. at 1136—the property and pay treble damages.
Having set the stage, the Court now reviews the merits of Gallo’s claims.
III.
First, the Court can quickly dispense with Gallo’s Contract Clause claim. Gallo brings all
his claims under 42 U.S.C. § 1983. SAC at 1 (“Second Amended Complaint for Damages and
Declaratory Relief (42 U.S.C. § 1983)” (cleaned up)). But the Supreme Court has long held that
the Contract Clause is not enforceable through § 1983. Greenhow, 114 U.S. at 322. Instead, the
only right secured by the Contract Clause is the right, in a suit to enforce a contract that the
Government purports to prohibit, to set aside the state law that would invalidate the contract. Id.
So this claim may be readily dismissed.
Second, the Court can likewise dispense with Gallo’s writ of waste claim. The District’s
writ of waste statute permits suits only “against him that holdeth by law, or otherwise for term of
life, or for term of years.” D.C. Code § 42-1601. In other words, the cause of action runs only
against the landlord’s tenant. But Gallo sues the District, not Hopkins. Because the cause of

7

action cannot run against the District, Gallo lacks a viable claim. See Nelbach, 291 A.3d at 1130
(holding that the landlord “may sue the tenant” under § 42-1601 (emphasis added)). This claim
also must be dismissed.
Gallo’s Takings Clause claim demands more searching inquiry. But it, too, fails. The
District did not physically acquire Gallo’s property, so the filing ban cannot be considered a
taking on that ground. Nor did the District’s regulation so exceed the bounds of permissible
government action to be considered a regulatory taking.
Start with physical appropriation. The District did not take title to or possession of
Gallo’s property. Instead, it required him to continue allowing delinquent tenants to live there
without fear of eviction. So the question is whether the District’s temporary suspension of
eviction as a landlord remedy counts as a physical occupation for Takings Clause purposes. The
Supreme Court has already addressed this question in a decision that is closely on-point.
In Yee, the Court considered a California law that “limit[ed] the bases upon which a park
owner may terminate a mobile home owner’s tenancy.” Yee, 503 U.S. at 524. Under that law,
“the park owner cannot evict a mobile home owner.” Id. at 526–27. The Yees, who operated a
mobile home park, sued the City of Escondido, arguing that this constituted a taking of their
property rights. Id. at 526. The Supreme Court disagreed.
The Court held that “[t]he government effects a physical taking only where it requires the
landowner to submit to the physical occupation of his land.” Yee, 503 U.S. at 527. But the
mobile home eviction bar did not constitute a “compelled physical invasion” because the Yees
had “voluntarily rented their land to mobile home owners” in the first place. Id. In other words,
the Yees had consented to the initial physical occupation of their land when they leased the
property to the tenants. At most, the government policy prolonged that occupation.

8

But a mere prolonged occupation was not a taking either. Indeed, as the Court noted, the
law did not “compel[] petitioners, once they have rented their property to tenants, to continue
doing so.” Yee, 503 U.S. at 527–28. All it did, the Court found, was defer any eviction by “6 to
12 months.” Id. at 528. Crucially, the government did not compel the Yees to “refrain in
perpetuity from terminating a tenancy.” Id. So long as an eviction might be available down the
line—even if months or more away—no physical occupation had occurred. See id. In sum, the
Court held that the “tenants were invited by petitioners, not forced upon them by the
government,” so the “right to exclude” had not “been taken from petitioners on the mere face of
the Escondido ordinance.” Id. 5
The filing moratorium here resembles the law in Yee. Just as there, it regulates Gallo’s
conduct toward tenants that he (or his predecessor-in-interest) voluntarily leased to. And, just as
in Yee, the District’s policy does not require Gallo to keep a tenant forever. Instead, it simply
delays the filing of any action in ejectment until a set time—60 days after the public health crisis
ends. 67 D.C. Reg. at 5243. The policy here is legally indistinguishable from the one in Yee, so
Yee commands that Gallo’s physical-occupation taking claim fails.

5

It for this reason that Cedar Point Nursery also does not help Gallo. That case dealt with
whether depriving a landowner of the right to exclude constituted a taking. But the Court in Yee
held that eviction moratoria like the one here do not deprive landowners of the right to exclude at
all. Yee, 503 U.S. at 528.
Admittedly, there is tension between Cedar Point Nursery and Yee. Indeed, it is hard to
square Yee’s holding with Cedar Point Nursery’s more recent treatment of government takings.
But the Supreme Court in Cedar Point Nursery cited Yee with approval. Cedar Point Nursery,
141 S. Ct. at 2072. And it has been adamant that “[i]f a precedent of [the Supreme Court] has
direct application in a case, yet appears to rest on reasons rejected in some other line of
decisions,” lower courts “should follow the case which directly controls, leaving to [the Supreme
Court] the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am.
Exp., Inc., 490 U.S. 477, 484 (1989); see also Gallo, 610 F. Supp. 3d at 88 n.6.
9

Gallo argues that his case is unlike Yee because the tenancy in Yee was as-yet
unterminated, whereas the tenancy here has ended. See Opp’n to MTD at 6, ECF No. 56. But
that fact did not play into the Court’s reasoning. The Court in Yee paid no mind to the present
status of the tenancy. What mattered was that the tenancy was initially voluntary. See Yee, 503
U.S. at 528 (“Petitioners’ tenants were invited by petitioners, not forced upon them by the
government.”). And by all accounts, this tenancy was, too. Gallo alleges that he took title to the
Foreclosure Unit voluntarily, converting the previous owner to his tenant at will. SAC ¶ 4.
Gallo only later terminated that tenancy, making Hopkins a trespasser. Id. More, the reason that
the tenancy had not been terminated in Yee was because the challenged law forbade it. Yee, 503
U.S. at 524. So it would be circular to distinguish Yee on that ground.
Turning to regulatory takings, Gallo’s claim again fails to cut the mustard. First, the law
here is not a per se regulatory taking under Lucas. A law is only a per se taking under Lucas
when it denies the owner “all economically beneficial or productive use” of his property. Lucas,
505 U.S. at 1015. That standard is not met here. The filing ban only deprived Gallo of
economic benefit from those tenants who refused to pay rent and failed to quit the premises, such
that eviction was necessary. And even among those individuals, the law did not stop them from
accruing liability for money damages over the continued occupation of the units. So almost all
economic value of the property remains undiminished.
And Yee confirms this. It held that “state and local laws” that “regulat[e] the relationship
between landlord and tenant” are subject to the “essentially ad hoc, factual inquir[y]” under Penn
Central. Yee, 503 U.S. at 528–29. The Court now turns to that standard.

10

The Penn Central analysis focuses on the regulation’s economic effect on Plaintiff, the
degree of interference with his reasonable investment-backed expectations, and the character of
the governmental action. See Penn Central, 438 U.S. at 124. The Court takes each in turn.
Start with the economic effect on Gallo. He pleads that he has lost $36,400 as a result of
the filing moratorium. SAC at 16. He also identifies other downstream costs, like legal fees and
mental anguish. Id. at 18–20. But those are not economic impacts of the kind relevant to Penn
Central. See Penn Central, 423 U.S. at 124. Thirty-six thousand dollars is undoubtedly a great
hardship for Gallo. But the law requires more. As the Court previously noted, see Gallo, 610 F.
Supp. 3d at 90, he must put forward “striking evidence of economic effects” to sustain a Penn
Central claim. See Dist. Intown Props. Ltd. P’ship v. District of Columbia, 198 F.3d 874, 883
(D.C. Cir. 1999). And this does not rise to that level. Gallo, 610 F. Supp. 3d at 90. But even if
the economic impacts were harsh enough, each of the other Penn Central factors weighs against
Gallo.
Consider the impact on his reasonable investment-backed expectations. Landlord-tenant
relations are pervasively regulated. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 440 (1982); see also Yee, 503 U.S. at 529. Gallo is a sophisticated individual who owned
several rental properties prior to acquiring this one. SAC ¶¶ 1–4. So he was surely on notice of
the degree of government involvement in landlord-tenant relations.
More, the specific kind of regulation at issue had occurred before. See Yee, 503 U.S. at
524. It had even occurred here in Washington. See Block v. Hirsh, 256 U.S. 135, 153–54
(1921). And these regulations had been upheld by the Supreme Court repeatedly. See Yee, 503
U.S. at 538–39; Block, 256 U.S. at 156. So Gallo had no reasonable expectation that they could
not recur. But even had those prior regulations not existed, “[b]usinesses that operate in an

11

industry with a history of regulation,” such as rental properties, “have no reasonable expectation
that regulation will not be strengthened to achieve established legislative ends.” Dist. Intown,
198 F.3d at 884.
Last, consider the character of the government action. This factor focuses on “whether
the government has legitimized a physical occupation of the property, and whether the regulation
has a legitimate public purpose.” Dist. Intown, 198 F.3d at 879 (cleaned up). The regulation did
not “legitimize[] a physical occupation of the property.” Id. It did not purport to render trespass
by erstwhile tenants lawful. Nor did it bar the termination of tenancies. Rather, it simply
deferred a specific remedy (eviction) until after the public health emergency. And this had “a
legitimate public purpose.” Id. It sought to combat the spread of the COVID-19 pandemic,
which the Supreme Court has held “is unquestionably a compelling interest.” Roman Cath.
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020); see also Roman Cath. Archbishop of
Wash. v. Bowser, 531 F. Supp. 3d 22, 37 (D.D.C. 2021). So, in sum, Gallo’s Penn Central
argument fails on all three elements. Thus, the District’s filing ban was not a regulatory taking.
Gallo’s substantive claims therefore all fail. His remaining claims are all derivative of
those substantive claims, requesting various forms of damages or costs. See SAC at 18–21. But
because Gallo has failed to state a claim, his requests for specific remedies are of no moment. So
the Court will dismiss them too. 6
IV.
To be sure, Gallo was unlucky in the timing of his real-estate investment. He bought
what he thought would be a profitable residential unit, and he ended up with a freeloader who

6

Gallo has also moved for leave to file a Sur-reply to the District’s motion to dismiss. ECF No.
59. The Court will grant that motion but notes that it has considered the arguments raised in
Gallo’s proposed Sur-reply and none changes the outcome of this motion.
12

avoided eviction because of the District’s COVID-related eviction prohibition. But
unfortunately for Gallo, binding caselaw simply does not provide a remedy against the city for
landlords in his situation.
At this point, Gallo has had his day in court several times over. He has litigated these
issues in the local courts and in this Court repeatedly. By now, it is clear that “the allegation of
other facts” cannot “possibly cure the deficienc[ies]” in his Complaint. See Abbas v. Foreign
Pol’y Grp., LLC, 783 F.3d 1328, 1340 (D.C. Cir. 2015). So the Court must not only dismiss his
Complaint, but also must do so with prejudice. Because the Court will grant the motion to
dismiss, it will deny Gallo’s motion to expedite, ECF No. 60, as moot. A separate order will
issue today.

2023.11.14
11:20:59 -05'00'
Dated: November 14, 2023

TREVOR N. McFADDEN, U.S.D.J.

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