Bentler et al v. Haner et al

Filing 79

MEMORANDUM OPINION AND ORDER granting in part and denying in part the defendants' 58 Motion to Dismiss, granting said motion as to the LBPHRA claim and otherwise denying said motion. Signed by Judge John T. Copenhaver, Jr. on 10/23/2013. (cc: attys; any unrepresented party) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
LAWANDA BENTLER,
individually and as
Next friend and
legal guardian of,
DESTINY A. BENTLER,
a minor child,
Plaintiffs,
v.

Civil Action No. 2:12-1682

THE ESTATE OF JOHN W. HANER and
PHILLIP H. HANER, individually,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the defendants' motion to dismiss filed July
9, 2013.

I.

Plaintiff Lawanda Bentler is the mother of fellow
plaintiff Destiny A. Bentler, who is now approximately ten years
old.

John W. F. Haner, now deceased, was a North Carolina

resident at all times relevant.

Defendant Phillip H. Haner is

alleged to be a resident of Pennsylvania with a "last known
address" of Ellijay, Georgia.

(Am. Compl. ¶ 3).

The Haners own three houses in Boone County that were
built prior to 1978.

Since at least March 2004, two of the houses

were leased to Joanne Clarke on a month-to-month basis.

Ms.

Clarke, in turn, sublet one of the houses to Lawanda Bentler from
approximately March 26, 2004, through at least October 24, 2007.
During the Clarke-Bentler sublease period, Ms. Bentler
resided in the house with Destiny.

In "approximately 2007," (Am.

Compl. ¶ 14), Destiny was tested and exhibited elevated lead
levels.

On October 22, 2007, officials with the West Virginia

Department of Health and Human Resources inspected the subleased
house.

The inspection revealed peeling and flaking lead-based

paint on both the interior and exterior of the house.

Elevated

lead levels were also found in the soil surrounding the home.
On May 25, 2011, the Bentlers instituted this action
against the Haners.

They alleged that "[t]he elevated lead levels

[are] . . . harmful to . . . [Destiny] and will . . . cause future
medical problems which are permanent in nature."

(Compl. ¶ 9).

In addition to pleading a negligence claim, the Bentlers also
alleged as follows:
Lawanda Bentler . . . is . . . entitled to loss of
filial consortium based upon the injuries suffered by
her child as a result of the Defendants' conduct.
(Compl. ¶ 15).

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The Haners earlier moved to dismiss Lawanda Bentler's
filial consortium claim.

They asserted that West Virginia does

not recognize that cause of action.

They additionally contended

that Destiny's elevated lead levels were discovered in
approximately 2007, barring Lawanda Bentler's filial consortium
claim in any event.

The court by order entered December 26, 2012,

concluded that both the viability of the filial consortium claim
and the applicability of a limitations bar should await further
development of the evidentiary record through discovery.

The

Haners were granted leave to raise the issues anew at the summary
judgment stage of the case.1
On June 25, 2013, the Bentlers filed the first amended
complaint.

In addition to the claims originally pled, the

Bentlers now assert a claim under the Residential Lead-Based Paint
Hazard Reduction Act of 1992 (“LBPHRA”), 42 U.S.C. §§ 4851–4856.
They contend that the Haners failed to provide them with a host of
LBPHRA-mandated disclosures that would have sufficiently warned of
the lead-based paint hazards existing at the leased premises.
Those alleged disclosure violations are as follows:
a) Failing to provide a written Lead Warning Statement
to Lawanda Bentler, or any other member of Lawanda
Bentler's household; failing to disclose the presence of
any known lead-based paint and/or lead-based paint
hazards at the subject property;
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The Haners attempt to renew these assertions presently
despite the earlier ruling. The court declines to now reach the
matters for the reasons earlier expressed.
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b) Failing to disclose knowledge, or lack of knowledge,
regarding the presence of lead-based paint and/or leadbased paint hazards at the subject property;
c) Failing to provide a list of records or reports
available to . . . [the Haners], which pertain to leadbased paint and/or lead-based paint hazards at the
subject property;
d) Failing to provide a lead information pamphlet
approved by the Environmental Protection Agency;
e) Failing to include with . . . [the Bentlers’] lease
and/or sublease documents a statement by the lessee
affirming receipt of information related to lead-based
paint hazards; and
t) Failing to sign, provide, or retain a certification
affirming the accuracy of information provided by them,
their agents, or the . . . [Bentlers] as sublessees.
(First Am. Compl. ¶¶ 25a-f).

These disclosure and certification

obligations arise from 42 U.S.C. § 4852(d) and 40 C.F.R. §§
745.107 and 745.113.

The statute and regulations explicitly

require the disclosures prior to the lease becoming effective.
In seeking dismissal of the first amended complaint, the
Haners contend that (1) Destiny Bentler does not have standing to
pursue an LBPHRA claim, (2) the Bentlers have not alleged a
knowing violation of the LBPHRA, (3) the LBPHRA claim is time
barred, and (4) Ms. Bentler fails to allege any damages suffered
as a result of the LBPHRA disclosure violations.

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II.

A.

Governing Standard

Federal Rule of Civil Procedure 8(a)(2) requires that a
pleader provide “a short and plain statement of the claim showing
. . . entitle[ment] to relief.”

Fed. R. Civ. P. 8(a)(2); Erickson

v. Pardus, 127 S. Ct. 2197, 2200 (2007).

Rule 12(b)(6) permits a

defendant to challenge a complaint when it “fail[s] to state a
claim upon which relief can be granted . . . .”

Fed. R. Civ. P.

12(b)(6).
The required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the grounds upon
which it rests.’”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957),
overruled on other grounds, Twombly, 550 U.S. at 563); see also
Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007).

In

order 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, 129 S.

Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570); see also
Monroe v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir.
2009).

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Application of the Rule 12(b)(6) standard requires that
the court “‘accept as true all of the factual allegations
contained in the complaint . . . .’”

Erickson, 127 S. Ct. at 2200

(quoting Twombly, 127 S. Ct. at 1965); see also South Carolina
Dept. Of Health And Environmental Control v. Commerce and Industry
Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004) (quoting Franks v.
Ross, 313 F.3d 184, 192 (4th Cir. 2002)).

The court must also

“draw[] all reasonable . . . inferences from th[e] facts in the
plaintiff's favor . . . .”

Edwards v. City of Goldsboro, 178 F.3d

231, 244 (4th Cir. 1999).

B.

Analysis

The LBPHRA was passed as Title X of the Housing and
Community Development Act of 1992. See Pub. L. No. 102–550,
codified at 42 U.S.C. §§ 4851–4856.

While it is often the case

that state law is borrowed for federal claims lacking an
applicable limitations period, there is a federal catch-all
limitations statute applicable in some instances.

That

limitations period, found in 28 U.S.C. § 1658(a), provides as
follows:
Except as otherwise provided by law, a civil action
arising under an Act of Congress enacted after the date
of the enactment of this section may not be commenced
later than 4 years after the cause of action accrues.
28 U.S.C. § 1658(a).
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The Supreme Court has “conclude[ed] that a cause of
action ‘aris[es] under an Act of Congress enacted’ after December
1, 1990 -- and therefore is governed by § 1658's 4–year statute of
limitations -- if the plaintiff's claim against the defendant was
made possible by a post–1990 enactment.”

Jones v. R.R. Donnelley

& Sons Co., 541 U.S. 369, 382 (2004); see Baldwin v. City of
Greensboro, 714 F.3d 828 (2013).

Inasmuch as the Bentlers’ LBPHRA

claim was made possible by the 1992 enactment of the LBPHRA, the
four-year federal limitations period applies to those claims.
It seems equally clear that the West Virginia statutory
tolling period would not apply to the LBPHRA claim.

See, e.g.,

19 Charles A. Wright et al., Fed. Prac. & Proc. § 4519 (2d ed.
elec. 2013) (“[S]tate tolling provisions and saving statutes are
inapplicable when a statute of limitations is borrowed from
another federal statute. This result seems quite proper because
the rationale for borrowing a state tolling rule for federal
purposes is defeated when the application of the concomitant state
statute of limitations has been rejected in favor of a federal
source.); 3 Cyc. of Federal Proc. § 10:19 (3d ed. elec. 2013)
(“Where Congress has provided a federal statute of limitations for
a federal claim, state tolling and savings provisions are not
applicable.”); see Burnett v. New York Cent. R. Co., 380 U.S. 424,

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432 (1965).

The Bentlers have not identified any applicable

federal tolling provision.
Determining the accrual date appears relatively
straightforward.

The Bentlers do not challenge the process by

which the Haners arrived at the accrual date of March 26, 2004,
according to the following analysis: “The . . . [First Amended
Complaint] alleges that . . . [the Bentlers] became lessees on
March 26, 2004.

Accordingly, any claim for a violation of the Act

would have accrued on March 26, 2004 and would have needed to have
been filed on or before March 26, 2008.”
(citation omitted)).

(Memo. in Supp. at 7

The analysis is consistent with the

statutory and regulatory obligations to provide the disclosures
prior to the lease becoming effective.
Assuming the recently added LBPRHA claim related back to
the date of the original complaint, May 25, 2011, the LBPHRA claim
would nevertheless have been time barred on March 27, 2008.
Inamsuch as the LBPHRA claim was brought at a time when the
limitations period had expired, the Haners are entitled to
dismissal of the claim.

It is, accordingly, ORDERED that the

motion to dismiss be, and hereby is, granted as to the LBPHRA
claim and otherwise denied.

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The Clerk is directed to transmit copies of this written
opinion and order to all counsel of record and any unrepresented
parties.
ENTER: October 23, 2013

John T. Copenhaver, Jr.
United States District Judge

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