Jones et al v. U.S. Department of Housing and Urban Development

Filing 14

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 2/2/2017. (kns, Deputy Clerk)(c/m 2/2/17)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOl/tltem DiI';s;o/l

VINCENT .JONES, et a/.,

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Plaintiffs,

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Case No.: G.JH-16-0726

v.
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UNITED STATES OF AMERICA

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Defendant.

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MEMORANDUM

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OI'INION

Plaintiffs Vincent Jones and Demetria Weir bring this pro se action against the U.S.
Department

of Housing and Urban Development

air conditioning

("IIUD .. )I ItJr a dispute relating to inoperable

("AIC") units and water damage in a home sold to Mr. Jones. Now pending

beltlre the Court is the United States' Motion to Dismiss or in the Alternative
Judgment.
Defendant's

for Summary

ECF NO.8. No hearing is necessary. See Loc. R. 105.6. For the following reasons.
Motion to Dismiss is granted.

I PlaintilTinitially
tiled suit against the U.S. Depanment ofllousing and Urban Development. ECF NO.2. However.
"the United States is the only proper pany defendant to an FTCA suit:' which as explained below. is applicable
here. M(~)"O \'. United Stllte". No. CIV.A. ELH-12-1857. 2013 WL 762971. at *3 (D. Md. Feb. 26. 2013). The
Fcderal Tort Claims Act provides that federal agencies. stich as HUD. "are not amcnable to suit under its provisions.
The Act provides for liability against only the United States. and plaintiffs seeking relicf under the Act may pursue it
against that defendant alone:. lei. (quoting Chang-Williams l'. Department (~rthe NeIl:\', 766 F. Supp. 2d 604. 608 (D.
Md. 2011) (citing 28 U.S.c. ~ 2679(a)) (internal citations omitted). In its Motion to Dismiss. the United States
substitutes itself for HUD. stating that '.,he United States of America. substituted for Hun as the sole proper party
Defendant under the Federal Ton Claims Act (28 U.S.c. ~ 1346(b)). respectfully requests that the Coun grant this
motion .. :. ECf NO.8 at I. Therefore. the Co un will instruct the Clerk to substitute United States of America (""the
United States") for Defendant HUD.

I.

BACKGROUND
Vinccnt Joncs purchased a single-family dwclling located at 4635 Bridgemount Place. La

Plata. MD 20646 on July 2. 20152 with Demctria Weir acting as his broker. ECI' No. 8-3 at 1.3
The HUD Property Condition Report stated that the A/C units on the property were inoperable.
ECF NO.2 at 2; ECI' No. 8-2 at 28.~ Between the sales date and date of closing. the AlC units
were stolen from the property. ECF NO.2 at 2. HUD initially declined to provide a credit to
Plainti ffs. but eventually offered a $1.000.00 credit. Id. The cost to replace the units was
$4.900.00. HUD's property management company informed Plaintiffs that HUD would not
replace the units because the units. which were 8 years old or newer. were "inoperable when
energized:' Id.
A few wecks after the "AlC issue:' Plaintiffs also discovered "severe ceiling water leaks"
on the property when the water was tested. Id. The Property Inspection Report. which had been
provided previously. stated there were "no water leaks in the property:' Id. The water leak
repairs and damages cost $5.300.00. Id. HUD provided Plaintiffs a $3.500.00 credit. Id.
Therefore. between replacing the A/C units and repairing the water damage. PlaintifTs allegedly
incurred a total 01'$4.900.00 after subtracting credits received from IIUD.
On January 12.2016. Plaintiffs liled the instant pro se Complaint in the District Court of
Maryland for Charles County. seeking damages lor the home repairs and inaccurate
representations in the Property Inspcction Report. ECF NO.2. Defendant removed the action to
this Court on March 11.2016. ECF No. I. Defendant filed a Motion to Dismiss or in the

, The sales contract was accepted by HUD on July 14,2015. ECF No. 8.3 at I.
.' In addressing a Motion to Dismiss. the Court may "properly taken judicial notice of matters of public record." such
as land records. and may consider doculllents attached to the Motion(s) to Dismiss. "so long as they are integral to
the complaint and authentic:' Philips \'. Pill. CI•.. '\/em. I/0SI' .. 572 F.3d 176. 180 (4th Cir. 2009).
~ Pin cites to documents tiled on the Court"s electronic filing system (CM/ECF) refer to the page numbers generated
by that system.

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Alternative for Summary Judgment on April 15,2016. ECF NO.8. Plaintiffs filed a Response on
July I. 2016. ECF No. II. Defendant filed its Reply on July 8. 2016. ECF No. 12.
II.

STANDARD

OF REVIEW

"It is well established that before a federal court can decide the merits of a claim. the
claim must invoke the jurisdiction of the court." Miller \', Bro\l'n. 462 FJd 312. 316 (4th Cir.
2006). Federal Rule of Civil Procedure 12(b)( I) governs motions to dismiss for lack of subject
matter jurisdiction. See KholllY v, MeselTe. 268

r. Supp.

2d 600. 606 (D. Md. 2003). a{Td. 85 F.

App'x 960 (4th Cir. 2004). Once a challenge is made to subject matter jurisdiction. Plaintiffs
bear the burden of proving that subject matter jurisdiction exists. See Evans \'. B.F I'erkins Co,.
a Dil', oj'Slandex /nl'/ COli}.. 166 F.3d 642. 647 (4th Cir. 1999): see a/so Ferdinand-Dal'enporl
", Children's Guild. 742

r. Supp.

2d 772. 777 (D. Md. 20 I0).

The Court should grant a Rule 12(b)(I) motion "only iI'the material jurisdictional facts
are not in dispute and the moving party is entitled to prevail as a matter of law." Emns. 166 F.3d
at 647. In ruling on a motion to dismiss under Rule 12(h)( I). the Court "should regard the
pleadings as mere evidence on the issue, and may consider evidence outside the pleadings
without converting the proceeding to one for summary judgment." Ferdinand-Davenporl.
Supp. 2d at 777 (quoting [mils.

742 F.

166 F.3d at 647): see a/so Richmond. Fredericksburg &

Polomac R.R. Co. v. UniledS/ales. 945 F.2d 765. 768 (4th Cir. 1991).
III.

ANALYSIS
Plaintiffs' Complaint does not specify a legal cause of action. However. the Cmllt must

construe pleadings o I'pro se litigants liberally. See Mo)'o \'. Uniled Stales. No. CIV.A. ELH-121857.2013 WL 762971. at *3 (D. Md. Feb. 26. 2013) (citing Erickson v. I'anlus. 551 U.S. 89.
94 (2007)). Thus. Plaintiffs' claims shall be construed as claims arising under the Federal Tort

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Claims Act ("FTCA"), 28 U,S,c.

SS

1346,2401. and 2671-2680. See id.: }vlilton v.

u.s. Dep't

(!I"

HOlls. & Urban Dev .. No. CIY 09-2226JNE/FLN. 2010 WL 1486498, at *2 (D. Minn. Mar. 19.
2010) (construing negligent home inspection claim against HUD as claim under FTCA)5
A. Exhaustion

The FTCA requires that a claimant first exhaust administrative remedies with the
appropriate federal agency before pursuing a claim in federal court. Section 2675 of the FTCA
provides. in relevant part:
An action shall not be instituted upon a claim against the United
States for money damages for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope
of his office or employment. unless the claimant shall have first
presented the claim to the appropriate Federal agency and his claim
shall have been finally denied by the agency in writing and sent by
certified or registered mail.
28 U.S.c.

S 2675(a).

A claim is properly presented when the federal agency whose activities

gave rise to the claim "receives Irom a claimant ... an executed Standard Form 95 or other
written notification of an incident. accompanied by a claim for money damages in a

SUlll

certain

for injury to or loss ofpropcrty ... alleged to have occurred by reason of the incident:' 28 C.F.R.

S

14.2(a). This administrative exhaustion requirement is jurisdictional and may not be waived.

Ahmed v. United States. 30 F.3d 514. 516 (4th Cir. 1994). Thus. "Iailure to file an administrative
claim warrants dismissal of[ the] Complaint under Fed. R. Civ. 1'. 12(b)( I) for lack of subject.
matter jurisdiction:'

Derricol/ v. Koch. No. CIY. DKC 14-3234.2015 WL 4459962. at *3 (D.

Md. July 20. 2015), rep0r/ and recommendation adopted. No. CIY.A. DKC 14-3234.2015 WL
4647800 (D. Md. Aug. 4. 2015).

5 In Plaintiffs' Opposition. Plaintiffs state \\lithout explanation that "'Tort' may not be the right choice for law suit
filing. Plaintiffs will correct and update prior to Ma)" 13.2016 ifnecessar)":' Eel' No. II. Plaintiffs have not
provided any further argument as to why "tort may not be the right choice" or why the Federal Tort Claims Act
would not otherwise apply.

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Defendant
administrative

contends

that the action should be dismissed

remedies because Plaintiffs did not tirst tile an administrative

ECF No. 8-1 at 7. To that end. Defendant
Regional Counsel

attaches the Declaration

claim with HUD.

of Miniard Culpepper.

for the New England Region fllr the United States Department

Urban Development.
supervising

for failure to exhaust

ECF No. 8-6 at I. In this capacity.

the review and processing

Mr. Culpepper

the

of I lousing and

is "responsible

for

of all tort claims tiled with the United States Department
pursuant to the Federal '1'011 Claims Act:' Id. Mr. Culpepper

of Housing and Urban Development

attests that based on a search of his files. Plaintiffs

have not liled a claim for injury or damages

with I IUD. Id.
In their response

in opposition.

HUD or atlach documentary

evidence

Plaintiffs do not allege that they submitted
indicating

that a claim was tiled. but state only that "Ms.

Weir worked tirelessly

to try and resolve this issue with HUD by contacting

line. HUD employees.

and Ofori & Associates

times without a tllir result:'
any information
the necessary
(describing
Plaintiffs

(IIUD's

asset management

HUI),s complaint
company)

multiple

ECF No. II at 2. Because Plaintiffs have not provided the Court with

as to the content of these communications.

inj'(mnation

a claim to

was submitted

the information

for exhaustion

to be submitted

whether

purposes. See 28 C.F.R. ~ 14.4

in administrative

have failed to exhaust their administrative

Housing and Urban Development

the Court cannot determine

remcdies

claims under FTCA). Thus. as
with the U.S. Department

of

as required by law. the Court must dismiss their claims.

B. Sovereign Immunil)'
Dcfendant

makes the additional

grounds of sovereign
the Government's

iminunity.

sovereign

argument

that Plaintiffs'

claim should be dismissed

on

See ECF NO.8 at 8-9, The FTC A operates as a partial waiver of

immunity,

See Ali \'. Fed. Bureau o{Priso/ls. 552 U.S. 2 I4.217-18

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(2008). However, the provisions of the FTC A do not apply to "[alny claim arising out of assault.
ballery, false imprisonment, lillse arrest, malicious prosecution, abuse of process, libcl. slander,
misrepresentation, deceit, or interference with contract rights."' 28 U.S.C. ~ 2680(h); see also
MeKeel\'. Uniled Slales, 178 F. Supp. 2d 493, 504 (D. Md. 200 I) (noting that Section 2680(h)
"applies to claims arising out of negligent, as well as intentional. misrepresentation").
Herc, Plainti ffs allegc that "the property condition report was clearly inaccurate and not
rcputable to bcgin with" and .'the person(s) who completed the report were not accurate in claims
of the condition of the said property, and as a result of their negligence, all repairs and
replacements in this mailer should be addressed accordingly."' ECF NO.2 at 2. Thus. Plaintiffs'
claims arc "grounded in the tort of misrepresentation" and "[t Jhe jurisdictional grant providcd by
the FTCA ... docs not extcnd to claims arising out of misrepresentation or deceit." JlII/fl'. Us.
Dep'l of Army, 508 F. Supp. 2d 459. 465 (D. Md. 2007). Federal courts handling similar
misrepresentation claims against I-IUD have held that sovereign immunity bars suit. See Dragoill
\'. UniledSlaleS, No. 10-11896,2013

WL 119995, at *7 (E.D. Mich. Jan. 9, 2013) (holding that

plaintiffs' claim that HUD withheld or concealed information ahout water damage and mold fell
"squarely within the misrepresentation exception in the FTCA"): Milron\'.

us.

Dep'l of'! lOllS. &

Urhan De\'.. No. CIV 09-2226.1NE/FLN, 2010 WL 1486498, at *2 (D. Minn. Mar. 19.2010)
(fInding that plaintitrs

claim that ..the property she purchascd from IIUD had previously heen

used as a methamphetamine

lah" lell into the misrepresentation exception, and suit was harred

by sovereign immunity): SllImpp
4502,2005

I'.

Sec J'. US. Dep'l of flo 1101'. & Urhan De\'.. No. CIV.A. 04-

WL 146882, at *2 (E.D. Pa. Jan. 21. 2005) (claim about defective water pipe harred

hy sovereign immunity). Accordingly. Plaintiffs' claims are dismissed, with prejudicc, on the
additional basis of sovereign immunity.

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IV.

CONCLUSION
For the foregoing reasons. Defendant's

Motion to Dismiss. ECF NO.8. is granted. A

separate Order shall issue.

Date: February f..2017
George .I. Hazel
United States District Judge

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