Caplan et al v. Weis et al
Filing
14
ORDER denying Defendants' 4 Motion to Dismiss and 12 Motion to Strike Plaintiffs' Response. Signed by Judge Richard W. Story on 2/11/2015. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
KANA CAPLAN and RICHARD
CAPLAN,
Plaintiffs,
v.
MARTIN WEIS and EAGLES
LAKE, INC.,
Defendants.
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CIVIL ACTION NO.
1:14-CV-01321-RWS
ORDER
This case comes before the Court on Defendants’ Motion to Dismiss [4]
and Motion to Strike Plaintiffs’ Response [12]. After reviewing the record, the
Court enters the following Order.
Background
This action arises out of a lessor’s alleged failure to notify tenants that
their rental property contained lead-based paint. Plaintiffs Kana and Richard
Caplan planned to move to Atlanta in the fall of 2013. After inquiring about an
online advertisement for a house to rent, Plaintiffs entered into a residential
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lease with Defendants Eagles Lake, Inc. and Martin Weis. Defendants did not
disclose any defects in the house, and neither the lease agreement nor
attachments contained any information about lead-based paint hazards. The
lease did specify, however, that a minor child would live in the house. The
parties executed the lease on August 9, 2013, and Plaintiffs paid the deposit and
first month’s rent for a total of $2,800. The lease term began on September 1,
2013.
Plaintiffs moved into the house on September 24, 2013. They discovered
that the house was very dirty and saw that Defendants had not finished painting
as they had promised. Plaintiffs also discovered other problems, including
holes in the floor and pests. A couple of days later, Defendants sent someone to
clean the house. As she cleaned, paint chips from the doors, walls, windows,
and trim fell on the floor. Kana Caplan then asked Mr. Weis during a telephone
conversation if it was possible the paint contained lead. Mr. Weis said that
many houses in the neighborhood contained lead paint, and it was possible their
home did, too. Mr. Weis said he would take care of the problems with the
house. Plaintiffs paid their second month’s rent, but Defendants did not make
any repairs.
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On October 3, 2013, Ms. Caplan did some research about lead paint that
caused her to become concerned for the safety of her family, especially her
infant son. The Caplans purchased lead-paint test kits, which yielded positive
results. They moved into a hotel that night. The Caplans told Mr. Weis that the
paint tested positive for lead and asked him to fix the problem or they would be
forced to move out. Mr. Weis refused.
The Caplans found another more expensive home to rent, and after
consulting with an environmental testing company, they found out that their
first house contained lead-based paint throughout the home. An inspection also
revealed lead-containing dust in several spots of the house. The company
advised the Caplans to have their possessions cleaned before moving into their
new home and to replace their vacuum cleaner.
Defendants refused to compensate the Caplans for these expenses and
failed to return Plaintiffs’ security deposit. Plaintiffs allege that Defendants
failed “to disclose information about lead-based paint hazards” and failed “to
provide premises fit for habitation by an infant.” (Compl., Dkt. [1] ¶ 47.) In
that regard, Plaintiffs bring claims for (1) violation of the Residential LeadBased Paint Hazard Reduction Act’s requirement that lessors disclose
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information about lead hazards; (2) negligence in failing to maintain the house
in a state of workmanlike maintenance and repair; and (3) failure to return the
security deposit within one month in compliance with O.C.G.A. § 44-7-34.
Defendants move for dismissal of all claims.
Discussion
I.
Motion to Strike [12]
Defendants ask the Court to strike Plaintiffs’ response brief as untimely
because Plaintiffs filed their response on June 16, 2014, nineteen days after
Defendants filed their May 28, 2014 motion to dismiss. Generally, parties have
fourteen days to file a response to a motion to dismiss. LR 7.1B, NDGa.
Plaintiffs correctly point out that service of documents filed through the case
management/electronic case filing system is the “equivalent of service of the
pleading or other paper by first class mail, postage prepaid,” and afforded the
additional three days allowed under Federal Rule of Civil Procedure 6(d). LR,
NDGA at Appendix H, II(B)(1)(a). Therefore, Plaintiffs had seventeen days to
respond. Because the seventeenth day fell on Saturday, June 14, Plaintiffs
timely filed their response on Monday, June 16, the next day the courthouse
was open. See FED. R. CIV. P. 6(a)(1)(C) (stating that if a time period ends on
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“a Saturday, Sunday, or legal holiday, the period continues to run until the end
of the next day that is not a Saturday, Sunday or legal holiday”). That being the
case, Defendants’ Motion to Strike [12] is DENIED.
II.
Motion to Dismiss Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.” While this pleading standard does not require “detailed factual
allegations,” mere labels and conclusions or “a formulaic recitation of the
elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In
order to withstand 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.’” Id. (quoting Twombly, 550 U.S. at 570). A complaint is plausible on its
face when the plaintiff pleads factual content necessary for the court to draw the
reasonable inference that the defendant is liable for the conduct alleged. Id.
“At the motion to dismiss stage, all well-pleaded facts are accepted as
true, and the reasonable inferences therefrom are construed in the light most
favorable to the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273
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n.1 (11th Cir. 1999). However, the same does not apply to legal conclusions set
forth in the complaint. See Iqbal, 556 U.S. at 678. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. Furthermore, the court does not “accept as true a legal conclusion
couched as a factual allegation.” Twombly, 550 U.S. at 555.
III.
Residential Lead-Based Paint Hazard Reduction Act
Congress passed the Residential Lead-Based Paint Hazard Reduction Act
of 1992 (“Lead Hazard Act”) to address the dangers of lead-based paint. Pub.
L. No. 102-550, Title X, 106 Stat. 3672 (1992) (codified at 42 U.S.C. §§ 48514856 (2006)). The Lead Hazard Act authorized the Environmental Protection
Agency to enact regulations regarding the “disclosure of lead-based paint
hazards in target housing which is offered for sale or lease.” 42 U.S.C. §
4852d(a)(1). Under this disclosure rule, sellers and lessors are required to
provide purchasers and lessees of “target housing” certain information
regarding lead-based paint dangers in their homes. See 40 C.F.R. §§ 745.107,
745.113. The regulations define “target housing” as “any housing constructed
prior to 1978.” 40 C.F.R. § 745.103. Moreover, the Lead Hazard Act provides
a private cause of action for violation of the disclosure rule:
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Any person who knowingly violates the [disclosure rule]
provisions in this section shall be jointly and severally liable to the
purchaser or lessee in an amount equal to 3 times the amount of
damages incurred by such individual.
42 U.S.C. § 4852d(b)(3).
Defendants argue that (1) the Lead Hazard Act does not apply to the
subject rental property; (2) Plaintiff Kana Caplan’s claim under the Lead
Hazard Act should be dismissed because she was not a signatory to the lease;
and (3) Defendant Martin Weis should be dismissed because he was not a party
to the lease between Plaintiff Richard Caplan and Defendant Eagles Lake.
First, Defendants assert that the Lead Hazard Act only applies to homes
that are federally funded. (See Defs.’ Br., Dkt. [4-1] at 5.) Plaintiffs respond
that Defendants are referring to the regulations in Title 24, Part 35, Subpart B,
of the Code of Federal Regulations, which implement additional requirements
for “all target housing that is federally owned” or “target housing receiving
Federal assistance.” 24 C.F.R. § 35.100(b)(1). On the other hand, Plaintiffs
rely on the disclosure regulations under Title 24, Part 35, Subpart A, which
“applies to all transactions to sell or lease target housing,” subject to certain
exceptions not at issue here. 24 C.F.R. § 35.82; see also 24 C.F.R. § 35.88
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(detailing disclosure requirements for sellers and lessors). The Court agrees
that Subpart B imposes additional requirements that do not apply to the subject
rental property. Rather, Plaintiffs properly cite Subpart A, and thus the Lead
Hazard Act’s disclosure requirements apply to the subject rental property.
Second, Defendants assert that Ms. Caplan’s claim under the Lead
Hazard Act should be dismissed because she did not sign the lease and therefore
has no standing under the statute, which creates a cause of action for “the
purchaser or lessee.” 42 U.S.C. § 4852d(a)(1). Defendants cite Sabra ex rel.
Waechter v. Iskander, in which the court held that a child of a lessee could not
recover under the Lead Hazard Act because the text of the statute only allows
claims for purchasers or lessees, not children of lessees. No. 1:08-CV-1204TWT, 2008 WL 4889681, at *4 (N.D. Ga. Nov. 10, 2008). In their Complaint,
Plaintiffs allege that “Kana Caplan and Richard Caplan, as tenants and lessees,
entered into a Residential Lease” for the subject property. (Compl., Dkt. [1] ¶
5.) Plaintiffs also attached a copy of the residential lease to their Complaint.1
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“The district court generally must convert a motion to dismiss into a motion
for summary judgment if it considers materials outside the complaint.” D.L. Day v.
Taylor, 400 F.3d 1272, 1275-76 (11th Cir. 2005); see also FED. R. CIV. P. 12(d).
However, documents attached to a complaint are considered part of the complaint.
FED. R. CIV. P. 10(c).
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The lease lists “Kana and Richard Caplan” as tenants. (See Dkt. [1-1] at 1.)
The only tenant to sign the lease was Richard Caplan, however. (See id. at 3.)
Neither Ms. Caplan nor anyone else is a signatory to the lease as a tenant.
Still, even if a lessee does not sign a lease, the lease could be enforceable
if the lessee partially performed under the terms of the agreement. See Cardin
v. Outdoor E., 468 S.E.2d 31, 31-32 (Ga. Ct. App. 1996) (citing O.C.G.A. § 135-31). Here Plaintiffs allege that they were both lessees under the lease, and the
lease lists Ms. Caplan as a tenant even though she did not sign it, demonstrating
an intent to bind her as well. Plaintiffs also allege that they partially performed
under the terms of the lease by paying a deposit and two monthly rent
payments. Therefore, at the motion to dismiss stage, Ms. Caplan has plausibly
alleged standing under the Lead Hazard Act as a lessee.
Defendants’ final argument on this claim is that Mr. Weis should be
dismissed because Eagles Lake was a party to the lease, not Mr. Weis. The
Lead Hazard Act’s language creating a cause of action is broad, authorizing suit
against “[a]ny person who knowingly violates” the disclosure rule. 42 U.S.C. §
4852d(b)(3). The statute does not limit liability to the seller or lessor.
Furthermore, the statute states that defendants will be “jointly and severally
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liable,” id., suggesting that individuals beyond the legal seller or lessor could be
liable. Given the broad language of the statute, the Court finds that the Lead
Hazard Act applies to Mr. Weis because Plaintiffs allege that he executed the
lease on behalf of Eagles Lake and communicated with them about the property.
Mr. Weis therefore could have violated the disclosure rule.
IV.
Negligence
Plaintiffs also bring a claim for negligence, alleging that Defendants
breached a duty of care owed to Plaintiffs by “fail[ing] to maintain the Subject
House in a state of workmanlike maintenance and repair.” (Compl., Dkt. [1] ¶
75.) Defendants argue that Plaintiffs fail to allege that they sustained physical
injury as a result of exposure to lead-based paint as required under Georgia law.
They also argue that Ms. Caplan and Mr. Weis should be dismissed for the
reasons stated above.
First, courts have held that in cases seeking recovery for physical injuries
involving exposure to toxic substances, a plaintiff must prove that the
defendant’s negligence resulted in physical injury amounting to “actual disease,
pain, or impairment of some kind.” See, e.g., Waechter, 2008 WL 4889681, at
*2 (quoting Boyd v. Orkin Exterminating Co., 381 S.E.2d 295, 298 (Ga. Ct.
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App. 1989), overruled on other grounds by Hanna v. McWilliams, 446 S.E.2d
741 (Ga. Ct. App. 1994)) (internal quotation marks omitted). Indeed,
Defendants are correct that Plaintiffs have not alleged a physical injury of this
type. But Plaintiffs do not attempt to recover for physical injury; instead they
allege that Defendants’ negligence resulted in property damage because they
had to have their possessions cleaned and had to replace their vacuum cleaner.
(See Compl., Dkt. [1] ¶ 46.) Defendants do not argue why Plaintiffs’ alleged
property damage is not recoverable under their negligence claim, nor do they
raise any other arguments related to the elements of negligence.
Next, Defendants assert that Ms. Caplan cannot maintain a negligence
claim because she did not sign the lease. Negligence claims do not depend on a
plaintiff’s privity with a defendant, however. See, e.g., Stancliff v. Brown &
Webb Builders, Inc., 561 S.E.2d 438, 440 (Ga. Ct. App. 2002) (“[A] negligence
claim does not depend upon privity of contract.”); Ramey v. Leisure, Ltd., 421
S.E.2d 555, 558 (Ga. Ct. App. 1992) (holding that “appellant’s contention that
the claim [for negligent construction] must fail due to a lack of privity between
himself and appellee is without merit because the cause of action is in tort
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which requires no privity”). Thus, even assuming Ms. Caplan is not a lessee,
she could still show that Defendants owed her a duty of care.
Finally, as stated above, Defendants argue that all claims against Mr.
Weis should be dismissed because he was not a party to the lease in his personal
capacity. Even so, Plaintiffs allege he participated in the alleged negligence
because he communicated with Plaintiffs about maintenance issues but refused
to address the lead-based paint problem. (See Compl., Dkt. [1] ¶¶ 39-40.)
“One who is sued in his personal capacity, whether the alter ego, an officer or
agent of a corporation, may not escape personal liability for his tortious
misconduct damaging employees or third persons by hiding behind the
corporate veil even in those situations where the corporation might also be a
proper party to the action.” Wrigley v. Nottingham, 141 S.E.2d 859, 861 (Ga.
Ct. App. 1965), rev’d on other grounds by Nottingham v. Wrigley, 144 S.E.2d
749 (Ga. 1965); see also Moore v. Barge, 436 S.E.2d 746, 749 (Ga. Ct. App.
1993) (“Although shareholders or officers in a corporation enjoy a limited
liability, they may be held liable individually for their own tortious or wrongful
acts.”). Plaintiffs allege that Mr. Weis personally participated in the alleged
tortious misconduct. Consequently, Defendant’s argument fails.
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Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss [4] and
Motion to Strike Plaintiffs’ Response [12] are DENIED.
SO ORDERED, this 11th
day of February, 2015.
________________________________
RICHARD W. STORY
United States District Judge
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