Gros v. Warren Properties, Inc. et al
Filing
60
ORDER AND REASONS. ORDERED that Defendant's 56 Motion to Dismiss is GRANTED. It is FURTHER ORDERED that Plaintiff's claims against Warren Properties, Inc. and Anchorage Investments, Ltd. are DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier. (gec, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SEAN GROS
CIVIL ACTION
VERSUS
NO: 12-2184
WARREN PROPERTIES, INC., ET AL
SECTION: J
ORDER AND REASONS
Before the Court is a Motion to Dismiss based on Rule 12(b)(6)
by Defendants Warren Properties and Anchorage Investments (Rec.
Doc. 56), along with Plaintiff's Opposition thereto (Rec. Doc. 57).
Defendants' motion is set for oral argument on Wednesday, September
25, 2013.
Having considered the motion, the pleadings, the briefs, and
the applicable law, the
Court finds, for reasons expressed more
fully below, that Defendants' Motion to Dismiss should be GRANTED
and that Plaintiff's claims against those defendants should be
DISMISSED WITH PREJUDICE.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff originally filed a personal injury action against
Warren Properties, Inc., York Risk Services Group, Inc., and
Deborah Bodine in state court. (Rec. Doc. 1). Plaintiff alleges
that he fell and injured himself while descending a common stairway
in his condominium building, the Anchorage Condominiums, and that
the accident was caused by the failure of the stairway emergency
1
lights to illuminate. (Rec. Doc. 27, p. 2).1 The suit was removed
to this Court. (Rec. Doc. 1). The Court denied Plaintiff's Motion
to Remand (Rec. Doc. 9), finding that Deborah Bodine was improperly
joined. (Rec. Doc. 27). The Court dismissed Ms. Bodine from the
suit and found that, after the dismissal of Ms. Bodine, there
existed complete diversity between the parties such that the Court
retained diversity jurisdiction over Plaintiff's claims. (Rec. Doc.
27). Warren Properties, Inc. filed a Motion to Dismiss for Failure
to State a Claim. (Rec. Doc. 31), and the Court denied the motion
without prejudice to allow Plaintiff to amend his complaint. (Rec.
Doc. 52). Plaintiff amended his complaint and added as defendants
Anchorage Investments, Ltd., Anchorage Association, Inc., and
Lexington Insurance Company. (Rec. Doc. 54).2 Warren Properties is
alleged to own a group of condominium units inside Anchorage
Condominiums. (Rec. Doc. 27, p. 17-18). Anchorage Investments is
alleged to own the Anchorage Condominium building itself, or at
least to own condominium units inside of the building. (Rec. Doc.
54, p. 3; Rec. Doc. 56-1, p. 4-5). Defendants Warren Properties and
1
For a more detailed recitation of the facts in this case, see the
Court's Order and Reasons denying the Motion to Remand. (Rec. Doc. 27, p. 14).
2
This Court previously granted Plaintiff and York's joint motion to
dismiss Plaintiff's claims against York without prejudice on the grounds that
Plaintiff erroneously named York as an insurance carrier when York was in fact
only a third party administrator. (Rec. Docs. 22& 25). Plaintiff is now
alleging that Lexington Insurance Company is the insurance carrier for Warren
Properties and Anchorage Association. (Rec. Doc. 54, p. 2).
2
Anchorage Investments3 have now filed a second Motion to Dismiss
(Rec. Doc. 56), and Plaintiff has opposed it. (Rec. Doc. 57).
PARTIES' ARGUMENTS
Defendants Warren Properties and Anchorage Investments argue
that in the Court's
Order and Reasons denying the Motion to
Remand, "[t]his Court denied Plaintiff's motion to remand finding
that Plaintiff stated no cause of action against Warren's employee
and found necessarily that Warren had no duty to Plaintiff." (Rec.
Doc. 56-1, p. 2).
Defendants further contend that Plaintiff's
Amended Complaint still fails to state a cause of action against
both Warren Properties and Anchorage Investments because only the
condominium association (Anchorage Association, Inc.), and not the
other defendants, had a duty to Plaintiff to maintain the common
areas of the condominium. (Rec. Doc. 56-1, p. 2-3). Defendants
argue that this Court has already stated that only the condominium
association has a duty to Plaintiff. (Rec. Doc. 56-1, p. 2-3).
Specifically, the Court's prior order and reasons stated:
Plaintiff has failed to plead facts establishing that
3
According to Warren Properties, Inc. and Anchorage Investments, Ltd.:
Plaintiff has not requested a summons be issued to Anchorage
Investments and has made no effort to serve it as well. However,
because Anchorage Investments believes that the allegations
against it are lacking, without merit and insufficient, it files
this motion to dismiss to seek a dismissal with prejudice while
reserving all other rights and defenses to object to the Amended
Complaint, including service.
(Rec. Doc. 56, p. 1, n.1).
3
Bodine's employer/principal, Warren, owed Plaintiff a
duty to maintain the lighting in the common stairwell of
the
condominium
complex
where
Plaintiff
sustained
injuries. ... The Louisiana Condominium Act provides in
pertinent part that "except to the extent provided by the
declaration, or Section 1123.112,4 the association is
responsible for maintenance, repair, and replacement of
the common elements, and each unit owner is responsible
for maintenance, repair, and replacement of his unit."
La. R.S. 1123.107. Thus, the default rule in Louisiana is
that
the
condominium
association
has
the
duty
to
maintain, repair, and replace the common elements of the
condominium building, not owners of groups of condominium
units. Plaintiff has not alleged that Warren was charged
with a duty to maintain and repair the common elements of
the condominium building in the condominium declaration.
Absent any allegation that the condominium declaration
delegated the duty of the condominium association to
maintain the common elements to Warren, Warren's duties
under Louisiana law, as the alleged owner of a group of
condominium units, extended only to the maintenance of
4
Section 1123.112 of the Louisiana Condominium Act places limits on the
condominium association's responsibility for repairing and replacing the
common elements but does not shift the responsibility for maintaining the
common elements from the condominium association. See La. R.S. § 123.107(G).
4
the units that Warren allegedly owned, operated, or
managed.
(Rec. Doc. 27, p. 17-18) (emphasis partially added).
Defendants argue that because Plaintiff's Amended Complaint
fails to allege that the condominium association delegated its duty
to
either
Warren
Properties
or
Anchorage
Investments
in
the
condominium declaration itself, Plaintiff has failed to state a
claim upon which relief can be granted against Warren Properties or
Anchorage Investments. (Rec. Doc. 56-1, p. 4-5).
In
Plaintiff's
Amended
Complaint,
he
alleges
that
the
condominium association "engaged Warren Properties" to perform all
duties regarding common elements through an "agreement" between the
condominium association and Warren Properties. (Rec. Doc. 54, p.
3).
Plaintiff
Anchorage
also
alleges
Investments
that
both
"controlled
Warren
Anchorage
Properties
and
Condominium's
operations." (Rec. Doc. 54, p. 6). Defendants contend that these
allegations are mere conclusory statements that are "unsupported by
specific facts and unsupported in law as outlined in this Court's
prior opinion on remand." (Rec. Doc. 56-1, p. 4). Defendants argue
that there is no factual support for any such "arrangement" and
that, even if there were, Plaintiff has never alleged that the
arrangement was presented in the condominium declaration itself.
For those reasons, Defendants claim that only the condominium
5
association, Anchorage Association, Inc., could even potentially be
liable to Plaintiff.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal
where a plaintiff fails “to state a claim upon which relief can be
granted.”
FED. R. CIV. P. 12(b)(6).
When considering a motion to
dismiss pursuant to Rule 12(b)(6), a court must accept all wellpled facts as true and must draw all reasonable inferences in favor
of the plaintiff.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228,
232-33 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996).
The Court is not bound, however, to accept as true legal
conclusions couched as factual allegations.
Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts “to state a claim to relief that is
plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 570).
A claim is facially
plausible when the plaintiff pleads facts that allow the court to
“draw the reasonable inference that the defendant is liable for the
misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
In order to be deemed legally sufficient, a complaint must
establish more than a “sheer possibility” that the plaintiff's
claims are true.
Id.
The complaint must contain enough factual
allegations to raise a reasonable expectation that discovery will
6
reveal evidence of each element of the plaintiff's claim. Lormand,
565 F.3d at 255-57.
If there are insufficient factual allegations
to raise a right to relief above the speculative level, or if it is
apparent
from
the
face
of
the
complaint
that
there
is
an
insuperable bar to relief, however, the claim must be dismissed.
Jones v. Bock, 549 U.S. 199, 215 (2007); Twombly, 550 U.S. at 555;
Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007).
DISCUSSION
The Court agrees with Defendants that Plaintiff's Amended
Complaint contains insufficient factual allegations to raise his
right to relief above the speculative level. Plaintiff has failed
to provide even the smallest amount of factual support to show that
any arrangement existed between either of the Defendants and the
condominium association whereby they assumed the association's
statutory duty to maintain and repair common elements. Even if
Plaintiff had provided such support, Plaintiff has never alleged
that
any
such
arrangement
was
presented
in
the
condominium
declaration itself, as required by La. R.S. 1123.107. Therefore,
Plaintiff's Amended Complaint fails to state a claim upon which
relief can be granted.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Defendants' Motion to
Dismiss (Rec. Doc. 56) is GRANTED.
IT IS HEREBY FURTHER ORDERED that Plaintiff's claims against
7
Warren
Properties,
Inc.
and
Anchorage
Investments,
Ltd.
DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 20th day of September, 2013.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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are
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