Thomas et al v. Corvias Group, LLC et al

Filing 15

ORDER granting in part and denying in part 10 Motion to Dismiss for Failure to State a Claim. Signed by District Judge James C. Dever III on 1/17/2023. (Sellers, N.)

·_ IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DMSION
No. 5:22-CV-226-D
SSG EZRA THOMAS, and
.
RACHEL THOMAS, individually and as
parents and guardians of E.T. and E.T.,

)
)
)
)
Plaintiffs, )
)
v.
)
)
BRAGG COMMUNITIES, LLC, et al.,
)
)
Defendants. )

ORDER

On June 6, 2022, Army Staff Sergeant Ezra Thomas and his wife, Rachel Thomas,

individually and on behalf of their two children, E.T. and E.T., (collectively ''plaintiffs") filed a
I

complaint in this court alleging breach of warranty of habitability, violations of North Carolina's
1

Unfair and Deceptive Trade Practices Act ("UDTPA"), breach of contract, negligence, violation of
'

Residential Lead-Based Paint Haz.ard Reduction Act, and temp9rary recurrent private nuisance
against Bragg Comm.unities, LLC, Corvias Management-Army, LLC, Bragg-Piceme Partners, LLC,
and Corvias Construction, LLC (collectively "defendants'') [D.E. 1].1 On August 29, 2022,
defendants moved to dismiss [D.E. 19] and filed a:memorandum in support [D.E. 11]~ See Fed. R.
Civ. P. 12(b)(6). On September 19, 2022, plaintiffs responded in opposition [D.E. 12]. On October
3, 2022, the defendants replied [D.E. 13]. As explained below, the court grants in part and denies
in part defendants' motion to dismiss.

1

On June 21, 2022, plaintiffs voluntarily dismissed certain defendants. See [D.E. 6].
Plaintiffs' complaint also alleged a breach of the Residential Lead-Based Paint Haz.ard Reduction
Act (''RLPHRA") 42 U.S.C. § 4852d, but plaintiffs have withdrawn their RLPHRAclaim. See [D.E.
12] 20.

Case 5:22-cv-00226-D Document 15 Filed 01/17/23 Page 1 of 14

Army StaffSergeant Ezra Thomas and his family moved into a rental residence on the United
)

· States military base at Fort Bragg in January 2013. Compl. [D.E. 1] 1 91. Defendants constructed,
marketed, and maintained the residence. Id. at ff 91, 97, 99. "Upon move-in" plaintiffs discovered
an infestation of box elder beetles in the residence and back.yard. Id. at 1 103. Over time, plaintiffs
noticed more defects in and around the residence. At some point, plaintiffs learned oflead paint in
the residence, defective light switches that "~kled and popped" when plaintiffs attempted to use
them, an outlet in the wall that exploded, defective windows that either would not open or would
"slam shut like a guillotine," uncleaned HVAC air ducts, and mold feeding into the ventilation ducts, ·
among other defects. Id. at ff 108-11, 118-19. When plaintiffs 3;ttempted to contact defendants to
have them remedy these defects, defendants failed to remedy the problems or fixed them much later.
\
Id. at ff 108--09. As for the mold, defendants did not attempt to properly clean the mold. Instead,
defendants simply painted over ~e wall. Id. at ff 119--20. Faced with defendants' repeated failure
to maintain the rental residence, plaintiffs sought help from politicians and the Fort Bragg Garrison
Commander. Id. at 1 114. In 2019, plaintiffs moved out of the residence. Id. at 1 117. Upon
moving out, an inspector came to the residence and noted mold around the air ducts and a lack of
insulation in the attic. Id. at ff 119, 121.
II.

A motion to dismiss under Rule 12(b)(6) ~sts the complaint's legal and factual sufficiency.
See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
l

554-63 (2007); Coleman v. Md. Court of Appeal,s, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566
U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298,302 (4th Cir. 2008). To withstand a Rule
12(b)(6) motion, a pleading ''m.ust contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face." Iqbm, 556 U.S. at 678 (quotation omitted); see Twombly, 550
U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the
2.
Case 5:22-cv-00226-D Document 15 Filed 01/17/23 Page 2 of 14

facts and reasonable inferences "in the light most favorable'to the [nonmoving party]." Massey v.
Ojaniit, 759 F.3d 343, 3S2 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of
Charlottesville, 708 F.3d 549, 5S7 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of
Gil~.S76 U.S. 1S5 (201S). A court need not accept as true a complaint's legal conclusions,
"unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, S21 F.3d at 302
(quotation omitted); see Iqbal, S56 U.S. at 67'&-79. Rather, a plaintiff's factual allegations must
"nudge[] [her] claims," Twombly, S50 U.S. at S70, beyond the realm of ''mere possibility'' into
"plausibility." Iqbal, S56 U.S. at 67&-79.
When evaluating a motion to dismiss, a court considers the pleadings and any materials
"attached or incorporated into the complaint." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,
637 F.3d 43S, 448 (4th Cir. 2011); see Fed. R. Civ. P. l0(c); Goines v. Valley Cmty. Servs. Bd., 822
F.3d 159, 166(4thCir. 2016); Thompsonv. Greene,427F.3d263,268 (4th Cir. 2005). Acourtmay
also consider a document submitted by a moving party if it is "integral to the complaint and there
is no dispute about the document's authenticity." Goines, 822 F.3d at 166. Additionally, a court
may take judicial notice of public records without converting the motion to dismiss into a motion
for ~ummary judgment. See,~ Fed. R. Evid. 201; Tellabs, Inc. v. Makor Issues & Rts., Ltd., SSl
U.S. 308, 322 (2007); Philips v. Pitt Cnty. Mem'l Hosp., S7,2 F.3d 176, 180 (4th Cir. 2009).
A.

Defendants argue that the applicable statutes of limitation bars all of plaintiffs' claims. A
. party may raise an affirmative defense based on the statute of limitations under Federal Rule of Civil
Procedure 12(b)(6) rather than Rule 8(c) if all facts necessary to the affirmative defense "clearly
appear[] on the face ofthe complaint." Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d
244, 2S0 (4th Cir. 1993); see Goodman v. Praxair, Inc., 494 F.3d4S8, 464 (4th Cir. 2007) (en bane).
In other words, the complaint must clearly allege "all facts necessary to the affirmative defense."
Goo~ 494 F.3d at 464. When the facts necessary to the affirmative defense are not apparent on
3:

Case 5:22-cv-00226-D Document 15 Filed 01/17/23 Page 3 of 14

the face of the complaint, discovery (not dismissal) is appropriate. See, ~ Cruz v. Maypa, 773
F.3d 138, 146--47 (4th Cir. 2014).
. Initially, plaintiffs respond that the court should toll any applicable statute of limitations
pursuant to the June 24, 2020 filing of the class action suit in Page v. Corvias Group,-LLC, No.
5:20-CV-336, 2021 WL 4163562 (E.D.N.C. Sept. 21, 2021) (unpublished). In support, plaintiffs cite

American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), and its progeny.
Under American Pipe, ''the commencement of a class action suspends the applicable statute
of limitations as to all asserted members of the class who would have been parties had the suit been
permitted to continue as a class action." Crown. qork & Seal Co. v. Parker, 462U.S. 345, 353-54
(1983); see Am. Pipe. 414 U.S. at 554. "Once the statute of limitations has been tolled, it remains
tolled for all members of the putative class until ~lass certification is denied. At that point, class
members may choose to file their own suits or ~ intervene as plaintiffs in the pending action."
Crown. Cork, 462 U.S. at 353-54. Although the Supreme Court ofNorth Carolina has not decided
the issue, the North Carolina Court ofAppeals has adopted the American Pipe standard under North
Carolina law. See Scarvey v. First Fed. Sav. & Loan Ass'n of Charlotte, 146 N.C. App. 33, 43, 552
S.E.2d 655, 661 (2001) ("We therefore hold that the statutes oflimitations on claims raised in a class
action complaint are tolled as to all putative members of the class from the· filing of the complaint
until a denial of class action certification by the trial court, as per American Pipe[.]"). Thus, sitting
in diversity, this court applies the holding of the ~orth Carolina Court of Appeals in Scarvey. See
Town of Nags Head v. Toloczk:o, 728 F.3d 391, 398 (4th Cir. 2013).
Plaintiffs are in the putative class in Page. The plaintiffs in Page are also military personnel
1

and their families who are asserting very similar cl~ against the defendants in this case regarding
their rental housing inFortBragg. Compare~ 2021 WL 4163562, at* 1 with Compl. Therefore,
-

!

under Scarvey and American Pipe. the statute oflimitations for plaintiffs is tolled for the period from

4

Case 5:22-cv-00226-D Document 15 Filed 01/17/23 Page 4 of 14

when the class action in Page was filed, August 31, 2020, to the filing of this lawsuit on June 6,
2022.
In opposition, defendants argue that plaintiff cannot use American Pipe to ''revive claims
already barred by the applicable limitations period" and that the court should consider all claims
time-barred because "all of the housing-related issues identified by Plaintiffs were apparent
immediately'uponmove-in.'" [D.E.11] 8; [D.E.13] 6-7. Defendants,however,misreadplaintiffs'
complaint. Plaintiffs' complaint alleges that "[u]pon move-in, Rachel Thomas noted that the home
and backyard were infested with box elder beetles. There were dead bugs in the home." Comp!. at

,r 103.

The complaint is unclear about when plaintiffs discovered defects in the lighting and

windows. Id. at

,r,r 104-09.

The complaint also is unclear about when plaintiffs discovered the

clogged HVAC duct. See id. at

,r,r 110-13.

The complaint also alleges that plaintiffs did not

discover the mold problems and lack of insulation until early 2019 when an inspector came to the
residence. See id. at

,r,r 116-22. Therefore, because it is not apparent on the face of the complaint

that plaintiffs discovered all alleged problems with the rental residence before the expiration of the
statute of limitations, as tolled by~ the court d~lines to dismiss all claims as time-barred.
~

See,

Cruz, 773 F.3d at 146--47; Goodman, 494 F.3d at 464.

B.
As for plaintiffs' Residential Rental Agreements Act ("RRAA") claim, defendants argue that

plaintiffs' claim is time-barred and, alternatively, that ''to be actionable, purported violations ofthe
RRAA must have existed during the limitations period." [D.E. 13] 10-,;-11; see N.C. Gen. Stat. §
i

.

42-46. Plaintiffs respond that the statute of limitations under the RRAA only limits the recovery
period and does not bar plaintiffs' RRAA claim outright. See [D.E. 12] 12-15.
i

Both parties cite Miller v. C.W. Myers Ti-ading Post, Inc., 85 N.C. App. 362, S.E.2d 189
(1987). In Miller, the North Carolina Court of Appeals analyzed how to apply the RRAA's threeyear statute of limitations when ''premises were never in a fit and habitable condition from the

5,
Case 5:22-cv-00226-D Document 15 Filed 01/17/23 Page 5 of 14

beginning of their tenancy until the date the Complaint was filed." Id. at 193,362 S.E.2d at 369.
In Miller, the court held that the defendant landlord's conduct was a continuing violation and held
that plaintiffs ''would be entitled to recover for any period oftheir occupancy following [three years
before filing the suit] during which [plaintiffs] can establish that the condition of the premises was
substandard as measured by the statute, regardless of whether the conditions complained of first
existed prior to that time." Id,_, 362 S.E.2d at 369.
Applying Miller, plaintiffs' RRAA claim is not time-barred, but plaintiffs are limited in their
recovery to the three-year statute of limitations as tolled by the filing of Page. The complaint
plausibly alleges that the residence was still in unacceptable condition within the statute of
limitations period. See,, ~ Compl. at ,r 109 ("Their windows never got fixed until after the
February 2019 visit noted below."), ,r 119 ("After the housing inspector came out, all that Corvias
did to remedy the mold problem was to paint it over."), ,r 121 ("The house inspector who inspected
at the time that the family moved out noted that the attic had little to no insulation. For the first time,
the family understood the likely reason why it was a constant struggle to keep the house heated and
air conditioned properly."). Therefore, although the a.mount of recovery may be limited, the court

declines to dismiss plaintiffs' RRAA claim.

CJ
Defendants argue that the four-year statute oflimitations bars plaintiffs' UDTPA claim given
that the marketing of the rental property to plaintiffs occurred in 2012. See [D.E. 11] 9-10; N.C.
Gen. Stat§ 75-16.2; Hinson v. United Fin. Servs., Inc., 123 N.C. App. 469, 473-75, 473 S.E.2d382,
386--87 (1996). Plaintiffs respond that allegedly poor conditions existed during the limitations
'

period and later unfair or deceptive acts, ~eluding defendants allegedly painting over the mold, are
1

sufficient to maintain their UDTPA claim. See,~ [D.E. 12] 15-18; Compl. ,r,r 118-20. Plaintiffs
also argue that the statute of limitations only began to run in late 2018 when plaintiffs "discovered
1'

the true circumstances of the unlawful conduct." [D.E. 12] 16.
6:
Case 5:22-cv-00226-D Document 15 Filed 01/17/23 Page 6 of 14

To state a claim under the UDTPA, plaintiff must show (1) an unfair or deceptive act or
practice (2) in or affecting commerce (3) which proximately caused actual injury to the plaintiff.
See, e.,g,_, N.C. Gen. Stat.§ 75-1.1; Dalton v. Camp,' 353 N.C. 647,656, 548 S.E.2d 704, 711 (2001);
Walker v. Fleetwood Homes ofN.C., Inc., 362 N.C. 63, 71-72, 653 S.E.2d 393, 399 (2007); RD &
J Props. v. Lauralea--DiltonEnters., LLC, 165 N.C. ,App. 737, 748, 600 S.E.2d 492, 500 (2004). The
conduct must be immoral, unethical, oppressive, unscrupulous, or substantially injurious to
consumers. See,~ Gilbane Bldg. Co. v. Fed. Reserve Bank 80 F.3d 895,902 (4th Cir. 1996).
Whether an act or practice is unfair or deceptive under the UDTPA is a question oflaw for the court.
See,~ Tucker v. Boulevard at Piper Glen, LLC, 150 N.C. App. 150, 153, 564 S.E.2d 248, 250
(2002); Norman Owen Trucking, Inc. v. Morkoski, 131 N.C. App. 168,177,506 S.E.2d 267,273
(1998).
Plaintiffs have plausibly alleged their UDTPA claim within the applicable four-year statute
of limitations. Therefore, the court declines to dismiss plaintiffs' UDTPA claim based on the fouryear statute of limitations. See~ 2021 WL 4~63562, at *8.
D.·

Defendants argue that the three-year statute of limitations bars plaintiffs' breach of contract
claim. See [D.E.11] 10-ll;N.C. Gen. Stat.§ 1-52(1);Jacksonv.Minn. Life Ins. Co.,275 F. Supp.
3d 712, 728 (E.D.N.C. 2017) (collecting cases). A
cause
of action for breach of contract accrues
1
'
when the breach occurs, whether the injured party knows if the breach has occurred or not. See
Jackson, 275 F. Supp. 3d at 728; Mtn. Land Props., Inc. v. Lovell, 46 F. Supp. 3d 609, 626
(W.D.N.C. 2014); MacDonald v. Univ. ofN.C. at Chapel Hill, 299 N.C. 457,463,263 S.E.2d 578,
582 (1980). Plaintiffs respond that a breach of con.tract claim can be timely if new acts or breaches
occur within the limitations period or there are continuing violations. See [D.E. 12] 19-20 (citing
Faulkenbwy v. Teachers' & State Emps.' Ret. Sy~., 108 N.C. App. 357,368,424 S.R2d 420,425
(1993)).

\

Case 5:22-cv-00226-D Document 15 Filed 01/17/23 Page 7 of 14

A "cause of action.for breach ofcontract accrues, and the statute oflimitations period begins
to run, '[a]s soon as the injury becomes apparent to the claimant or should reasonably become
apparent[.]'" ABL Plumbing & Heating Corp. v. Bladen Cnty. Bd. of Educ., 175 N.C. App. 164,
168,623 S.E.2d 57, 59 (2005) (quoting Liptrap v. City of High Point, 128 N.C. App. 353,355,496
S.E.2d 817, 819, disc. review deni~ 348 N.C. 73, 505 S.E.2d 873 (1998)) (alteration in original).
"Further damage incurred after the date of accrual is only an aggravation of the original injury and
does not restart the statutory limitations period." ABL Plumbing, 175 N.C. App. at 168, 623 S.E.2d
at 819. However, ''North Carolina case law is sparse regarding whether the continuing violation

doctrine applies to breach of contract claims so as to toll the applicable statute of limitations."
Lambert v. First Horizon Bank, No. 3:19-CV-581, 2021 WL 3260073, at *3 (W.D.N.C. June 29,
2021) (unpublished),~ and recommendation:adopted, No. 3:19-CV-581, 2021 WL 3234624
(W.D.N.C. July 29, 2021) (unpublished).
Sitting in diversity, this court must predi~ how the Supreme Court of North Carolina would
rule on any disputed state law issues. See Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage
Co. of S.C., 433 F.3d 365,369 (4th Cir. 2005). In doing so, the courtmustlookfirstto opinions of
the Supreme Court of North Carolina. See id.; Parkway 1046~ LLC v. U.S. Home Corp., 961 F.3d
'

301, 306 (4th Cir. 2020); Stable v. CTS Corp.• 8~ 7 F.3d 96, 100 (4th Cir. 2016). If there are no
governing opinions from the Supreme Court ofNoith Carolina, this court may consider the opinions
. of the North Carolina Court of Appeals, treatises, and ''the practices of other states." Twin City Fire
Ins. Co., 433 F.3d at 369 (quotation omitted). In predicting how the highest court of a state would

address an issue, this court must ''follow the decision of an intermediate state appellate court unless
there is persuasive data that the highest court would decide differently." Toloczko, 728 F.3d at 398
(quotations omitted); see Hicks v. Feiock, 485 U.S~ 624, 630 & n.3 (1988). Moreover, in predicting
how the highest court of a state would address an_ issue, this court "should not create or expand a
[s]tate's public policy." Time Warner Ent.-Adv~ce/Newhouse P'ship v. Carteret-Craven Blee.
8,

Case 5:22-cv-00226-D Document 15 Filed 01/17/23 Page 8 of 14

Membership Cotp., 506 F.3d 304,314 (4th Cir. 2007) (alteration and quotation omitted); see Day
& Zimmermann Inc. v. Challoner, 423 U.S. 3, 4 (1975) (per curiam); Wade v. Danek Med., Inc.,

182 F.3d 281,286 (4th Cir. 1999).
North Carolina appellate courts have applied the continuing wrong doctrine as an "exception
to the general rule" that a cause of action accrues as soon as the right to institute and maintain a suit
a.rises. Williams v. Blue Cross Blue Shield ofN.C.; 357N.C. 170, 178, 581 S.E.2d415, 423 (2003).
North Carolina appellate courts view continuing violations as falling into two narrow categories:
(1) a long-standing policy of discrimination and (2) a continually recurring violation. Faulkenbury,
108 N.C. App. at 368, 424 S.E.2d at 425. Plaintiffs do not argue that the first category applies. As
for the second category, North Carolina "courts have used this exception narrowly." Birtha v.
Stonemor, N.C., LLC, 220 N.C. App. 286, 292, 727 S.E.2d 1, 7 (2012).
In applying the second category, a court als~ should consider "[t]he particular policies ofthe
statute of limitations in question, as well as the nature of the wrongful conduct and harm
alleged ...." Williams, 357N.C. at 179,581 S.E.2dat423; see Stratton v. Royal Bank of Can., 211
N.C. App. 78, 86, 712 S.E.2d 221, 229 (2011). Relying on Williams, North Carolina appellate
courts have considered applying the continuing wrong doctrine in cases ranging from breach of
;

fiduciary duty in trust to conversion and corporate rights cases. See,~ Babb v. Graham, 190 N.C..
'

App. 463, 481, 660 S.E.2d 626, 637 (2008); Stratton, 211 N.C. App. at 86, 712 S.E.2d at 229. The
Supreme Court ofNorth Carolina explained that the continuing wrong doctrine can apply only where
there are "co~tinual unlawful acts, not by continual ill effects from an original violation." Williams,
357N.C. at 179,581 S.E.2dat423.
Plaintiffs' breach ofcontract claim regarding defendants' alleged failure to provide plaintiffs·
a residence ''reasonably safe and habitable for o~upancy" is not a continuing wrong. In Stratton,
· the North Carolina Court of Appeals refused to apply the continuing wrong doctrine to a plaintiff
deprived of shareholder rights to stock and cash dividends following allegations that a bank

Case 5:22-cv-00226-D Document 15 Filed 01/17/23 Page 9 of 14

wrongfully converted her stock. See Stratton, 211 N.C. App. at 86, 712 S.E.2d at 229. The Stratton
court held that the withholding of shareholder benefits was simply an ill-effect of the initial
conversion of plaintiff's stock, which was a "dis·crete occurrence--not a cumulative on~that
should have been discovered through reasonable diligence." Id., 712 S.E.2d at 229. Similarly, in
this case, defendants' initial failure to provide plaintiffs a residence ''reasonably safe and habitable
for occupancy'' is not a continuing wrong. Accordmgly, the court dismisses any breach of contract
claim based on defendants' initial failure to provide plaintiffs a residence reasonably safe and
habitable for occupancy.
Plaintiffs also claim breach of contract for ,defendants' alleged failure to properly maintain
the premises during the tenancy. See Compl. ,r 17S. This claim is analogous to the continuing
wrong discussed in Babb, 190 N.C. App. at 481, 660 S.E.2d at 637. In Babb, the North Carolina
Court of Appeals held that when a trustee "con~uously refused to make distributions under the
trusts until he was removed," this conduct constituted a continuing wrong and the statute of
limitations only began to accrue after defendant was removed as trustee. Id., 660 S.E.2d. at 637. As
in Babb, plaintiffs have alleged that defendants were under a continuing contractual obligation to
ensure timely maintenance ofthe residence, and the complaint alleges defendants' consistent failure
to do so despite plaintiffs' continued requests. See.

~

Compl.

,r,r 84,

108-09, 119. Thus,

plaintiffs' breach of contract claim based on defep.dants' alleged failure to properly maintain the
premises during the tenancy survives dismissal.
E.·.

Defendants argue that the three-year statute of limitations bars plaintiffs' negligence claim.
See [D.E. 11] 12. In support, defendants argue that the negligence claim accrued when the ''wrong
giving rise to the right to bring suit is committed, even if ... the injuries cannot be discovered until

a later date." Id.; N.C. Gen. Stat. §§ l-S2(5), (16)..

10

Case 5:22-cv-00226-D Document 15 Filed 01/17/23 Page 10 of 14

In analyzing plaintiffs' negligence claim, the court again examines the continuing wrong

doc1rine. In Birtba, the North Carolina Court of Appeals rejected applying the continuing wrong
doctrine to a negligence claim where there was no claim of physical harm or property damage. See
Birtba, 220 N.C. App. at 727, S.E.2d at 7. In contrast to the negligence claim dismissed in Birtba,
plaintiffs allege physical harm in their negligence claim. See Compl. ,r,r 183-89. Thus, the court
declines to dismiss plaintiffs' negligence claim. See~ 2021 WL 4163562, at *9.

F.
Defendants argue that the three-year statu~ of limitations bars plaintiffs' private nuisance
claim. See [D.E. 11] 14; N.C. Gen. Stat.§ 1-52(3). In support, defendants assert that the conditions
giving rise to the private nuisance claim existed or were discoverable before the statute oflimitations

period, and, therefore, the claim is barred. Id. ~laintiffs respond that the statute of limitations
· functions only to "limit the time window for dam.~es." [D.E. 12] 8.
Courts analyzing private nuisance claims under North ·Carolina law have noted that
"[a]lthough the limitations J?eriod does not bar the nuisance claims themselves, it does operate to bar
plaintiffs' recovery of damages beyond the three years prior to filing suit." In re NC Swine Farm
Nuisance Litig., No. 5:15-CV-00013, 2017 WL 5178038, at *7 (E.D.N.C. Nov. 8, 2017)
(unpublished) (emphasis omitted); J & P Dickey Real Est. Fam. Ltd. P'ship v. Northrop Grumman
Guidance & Elecs. Co., No. 2:1 lcv37, 2012 WL 925015, at *7 (W.D.N.C. Mar. 19, 2012)
·,

(unpublished); Wilson v. McLeod Oil Co., 327N.C. 491,511,398 S.E.2d 586,596 (1990). Because
plaintiffs have alleged a continuing private nuisan~ within the statue oflimitations period, as tolled
by the Page class action, the court declines to dismiss plaintiffs' private nuisance claim.
ill.

Defendants argue that plaintiffs have fail~ to state a claim for temporary private nuisance.
Specifically, defendants contend that plaintiffs "improperly attempt to assert this claim against all
Defendants, without specifying whether or how any particular Defendant allegedly violated the law."

H
Case 5:22-cv-00226-D Document 15 Filed 01/17/23 Page 11 of 14

[D.E. 11] 17. Plaintiffs respond that their complaint adequately notifies all defendants what the
alleged conduct was and that this court allowed a ''materially similar'' private nuisance claim to
proceed in Page. [D.E. 12] 10.
Although this court did not dismiss the pri".'ate nuisance claim i n ~ the arguments made
in Page and in this case are substantively different I n ~ defendants based their motion to dismiss
on the flawed premise that the class plaintiffs, as tenants, could not sue because the rental residences
were not plaintiffs' property. See~ 2021 WL 4163562, at *10. In this case, however,
defendants argue that Bragg Communities LLC ("Bragg") is the only proper defendant because it·
is the only defendant with any ownership interest :in the housing unit and the private nuisance claim
against the other defendants lack specificity. See [D.E. 11] 17-18.
The court agrees that the complaint only puts defendant Bragg on notice for the private
nuisance claim. Notably, the only theory for priva~ nuisance plausibly alleged in the complaint is
that defendants ''misuse of its ownership interest in the relevant housing unit and the military
!

housing property at Fort Bragg, caused the Plaintiffs to incur a substantial and unreasonable
interference with their ability to use and enjoy then; leasehold property." Compl. ,r 198. Only Bragg
has an ownership interest. Compare id. at,r 8 with id. atft.7, 10-12. Although plaintiffs argue that

Corvias Management was involved in how the ownership interest was used through its role as
property manager, simply citing Corvias Manageq1.ent as the property manager in the complaint at
!

paragraph 9 does not sufficiently link Corvias Management to the ownership interest cited in the
complaint at paragraph 198. Beyond Corvias Management, plaintiffs' complaint does not link the
other defendants to the ownership interest cited in their private nuisance claim. Therefore, the court
dismisses plaintiffs' private nuisance claim against all defendants except for defendant Bragg.
IV.
i

Defendants contend that plaintiffs improperly pleaded punitive damages as a separate cause
of action and that plaintiffs have not plausibly alleged sufficient facts to recover punitive damages.
;

Case 5:22-cv-00226-D Document 15 Filed 01/17/23 Page 12 of 14

See [D.E. 11] 18-22. Under North Carolina law, punitive damages are not a separate cause of
action. See Sasso v. Tesla, Inc., 584 F. Supp. 3d 60, 81 (E.D.N.C. 2022); Sykes v. Health Network
Sols., Inc., 372 N.C. 326, 329, 828 S.E.2d 467, 469 (2019); Watson v. Dixon, 352 N.C. 343, 348,
532 S.E.2d 175, 178 (2000); Newton v. Barth, 248 N.C. App. 331,345, 788 S.E.2d 653,' 664 (2016).
Nonetheless, if a complaint plausibly alleges the facts in support of an award of punitive damages
under North Carolina law, a court should not disn:µss a request for punitive damages.
Defendants argue that plaintiffs haye not plausibly alleged ''with specificity an aggravating
factor ... to justify punitive damages." [D.E. 11] 18. Specifically, defendants contend that under
North Carolina law plaintiffs have failed to plausibly allege that "officers, directors, or managers of
the corporation participated or condoned the condqct constituting the aggravating factor giving rise
to punitive damages." Id. at 20; N.C. Gen. Stat. §;1D-15(c). Plaintiffs respond that the complaint
j

sufficiently alleges facts for punitive damages aga,inst the corporate defendants and that this court
1

allowed a ''materially indistinguishable claim" to proceed in Page. [D.E. 12] 12.
Under North Carolina law, punitive damages are allowable ifthe plaintiffshows, by clear and
convincing evidence, the existence of an aggrav~ factor to defendant's conduct, such as malice,
fraud, or willful and wanton conduct. See N.C. Gen. Stat. § lD-15; OmniSource Con,. v. Heat Wave

Metal Processing, Inc., No. 5:13-CV-772, 2015 WL 3452918, at *13 (E.D.N.C. May 29, 2015)
(unpublished); Qpsitnickv. Crumpler, No. 5:13-CV-835, 2014 WL 1682013, at *4 (E.D.N.C. Apr.
'

28, 2014) (unpublished); Catalano v. AARP Org., No. 5:09-CV-455, 2010 WL 3063263, at *2
(E.D.N.C. Aug. 4, 2010) (unpublished); Monk v. Progressive Se. Ins. Co., No. 7:06-CV-15, 2006
WL 8439059, at *2-3 (E.D.N.C. May 23, 2006) (unpublished). Whether the facts alleged in the
;

complaint plausibly suffice to permit punitive damages is a question oflaw for the court. See Iqbal,
556 U.S. at 667-80; Twombly, 550 U.S. at 554--63. When punitive damages are-sought from a
1

corporate defendant, ''the officers, directors, or managers ofthe corporation" must have ''participated
in or condoned the conduct constituting the aggrav~ factor giving rise to punitive damages." Id.
13
Case 5:22-cv-00226-D Document 15 Filed 01/17/23 Page 13 of 14

§ lD-lS(c); Bell v. Am. Int'lindus., No. 1:17CV111, 2018 WL2745238, at *3 (M.D.N.C. June 7,
2018) (unpublished).
Plaintiffs fail to plausibly allege that any ofdefendants' officers, directors, or managetS were
involved or condoned any of the aggravating factors alleged in plaintiffs' complaint. For example,
'

plaintiffs allege that "Rachel went to the Corvias housing office and voiced her concerns." Compl.

,r 104. Plaintiffs, however, do not plausibly allege that this unnam~ employee at the housing office
is an officer, director, or manager of one of the defendants. Therefore, plaintiffs have not plausibly
alleged facts sufficient to recover punitive damages under North Carolina law. Thus, the court
dismisses plaintiffs' claim for punitive damages. :
V.,

In sum, the court GRANTS IN PART and ~ENIES IN PART defendants' motion to dismiss
[D.E. 10] plaintiffs' complaint.
SO ORDERED. This ...!.1. day of January, :2023.
;

J S C.DEVERID
United States District Judge

14
Case 5:22-cv-00226-D Document 15 Filed 01/17/23 Page 14 of 14