Gross v. Max

VELMA GROSS, EUGENE GROSS, and SIERRA GROSS, b/n/f VELMA GROSS Plaintiffs, v. RICHARD L. MAX, SR., and DELORES C. MAX, Defendants.

3:11-cv-463 PPS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION

ENTERED: August 2, 2012

OPINION and ORDER

Velma and Eugene Gross purchased a home from Richard and Delores Max in 2006 and have lived their since then. In 2008 the Grosses had a daughter, Sierra, and a year later they discovered she had lead poisoning. On November 9, 2011, the Grosses filed this suit seeking recovery from the Maxes under the Residential Lead-Based Paint Hazard Reduction Act (referred to herein either as "RLPHRA" or "the Act"). The Maxes have moved to dismiss claiming that, among other things, the action is barred by the statute of limitations. [DE 6 and DE 8.] For the reasons detailed below, the motions to dismiss will be granted.

Background

The Grosses allege that the Maxes violated RLPHRA, which was passed by Congress to curb the harm caused to children by lead paint poisoning. See 42 U.S.C. § 4851 et seq. RLPHRA includes certain disclosure requirements for the sale or lease of certain residences constructed prior to 1978. Id. at § 4851b(27). Specifically, the seller or lessor must provide a buyer or lessee a lead hazard information pamphlet, disclose the presence of any known lead-based paint or any known lead-based paint hazards in the residence, and permit the buyer orlessee a 10-day period of time to inspect the residence. Id. at § 4852d. This section of the statute also requires the owner or lessor to include a "Lead Warning Statement" in the purchase agreement, and the buyer or lessor is required to sign a statement acknowledging that they read the statement, received the pamphlet, and had the 10-day inspection opportunity. Id. The Act provides civil liability under 42 U.S.C. § 4852d(b)(3), such that "[a]ny person who knowingly violates the provisions of 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."

With this sketch of the statutory scheme as a backdrop, here is what is alleged to have happened in this case: On November 10, 2006, Velma and Eugene Gross entered into a Lease with Option to Purchase a property at 1514 W. Franklin St., Elkhart, Indiana with Richard L. Max, Sr. The Grosses moved into the residence on November 10, 2006. Because they signed an Agreement to Purchase the Residence, the Grosses became its equitable owners. Despite the fact that the residence was constructed prior to 1978, the Maxes did not provide the Grosses with a lead paint hazard information pamphlet, disclose the presence of any known lead-based paint or lead-based paint hazards, or permit the Grosses a 10-day inspection periods as required by 42 U.S.C. § 4852d.

The Grosses moved into the house and their child Sierra was born on February 6, 2008. She's resided at the residence ever since. In late June of 2009, medical testing on Sierra revealed elevated levels of lead in her bloodstream. Then, on July 8, 2009, the Elkhart County Health Department assessed the residence and a month later sent the Maxes a letter stating that the residence "does contain lead at levels that may pose a hazard to children living at [the Residence]." [DE 1-2.] Another test of Sierra's blood on September 11, 2009 further confirmedshe had elevated levels of lead.

On November 9, 2011, the Grosses filed their Complaint against the Maxes. The Complaint names Velma, Eugene, and Sierra Gross as plaintiffs, and seeks recovery from the Maxes for damage to the residence and personal injuries under the Act. The Maxes have now filed two motions to dismiss - one for Velma and Eugene and another for Sierra - arguing that, among other things, this action is barred by the statute of limitations.

Discussion

The minimum requirements for pleading a claim for relief are contained in Federal Rule of Civil Procedure 8. That rule requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8. But to survive a motion to dismiss under Rule 12(b)(6), "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); Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 555 (2007). And although at this stage I must accept all allegations as true and draw all reasonable inferences in the complainant's favor, I don't need to accept threadbare legal conclusions supported by mere conclusory statements. Iqbal, 129 S.Ct. at 1949-50.

The Grosses seek recovery under RLPHRA for damages to the residence and for personal injuries. The threshold issue raised in Defendants' motions to dismiss is whether the action is time-barred by the statute of limitations. And while the statute of limitations is usually an affirmative defense, plaintiffs can plead themselves out of court if they allege facts that demonstrate that a claim is time-barred. Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671, 675 (7th Cir. 2009) (dismissal appropriate where it is "clear from the face of theamended complaint that it is hopelessly time-barred"); U.S. Gypsum Co. v. Ind. Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003) ("A litigant may plead itself out of court by alleging (and thus admitting) the ingredients of a defense."). I ultimately conclude that that is what has occurred here, but arriving at that conclusion requires a somewhat lengthy tour through the Act's statutory framework.

Congress was explicit about the purposes of the Act when it was enacted and it is worth stating them in full here:

(1) develop a national strategy to build the infrastructure necessary to eliminate lead-based paint hazards in all housing as expeditiously as possible;

(2) reorient the national approach to the presence of lead-based paint in housing to implement, on a priority basis, a broad program to evaluate and reduce lead-based paint hazards in the nation's housing stock;

(3) encourage effective action to prevent childhood lead poisoning by establishing a workable framework for lead-based paint hazard elimination and reduction, and by ending confusion over reasonable standards of care;

(4) ensure that the existence of lead-based paint hazards is taken into account in the development of government housing policies and in the sale, rental, and renovation of homes and apartments;

(5) mobilize national resources expeditiously, though a partnership among all levels of government and the private sector, develop the most promising, cost-effective methods for evaluating and reducing lead-based paint hazards;

(6) reduce the threat of childhood lead poisoning in housing owned, assisted, or transferred by the federal government; and

(7) educate the public concerning the hazards and sources of lead-based paint poisoning and steps to reduce and eliminate such hazards.

42 U.S.C.A. § 4851a.

The impetus for the law was, moreover, explicitly focused on the problem of lead-poisoning for children:

The Congress finds that -

(1) low-level lead poisoning is widespread among American children, afflicting as many as 3,000,000 children under age 6, with minority and low-income communities disproportionately affected;

(2) at low levels, lead poisoning in children causes intelligence quotient deficiencies, reading and learning disabilities, impaired hearing, reduced attention span, hyperactivity, and behavior problems; . . .

(4) the ingestion of household dust containing lead from deteriorating or abraded lead-based paint is the most common cause of lead poisoning in children.

42 U.S.C. §§ 4851(1)-(2), (4).

There is thus no serious question that the overriding purpose of the Act is to protect children from lead poisoning. In achieving this purpose, Congress was mostly focused on requiring that federal agencies take various actions to ameliorate that harm. Thus, for instance, the Secretary of Housing and Urban Development is authorized to provide grants to eligible applicants to evaluate and reduce lead-based paint hazards. 42 U.S.C. § 4852(a)-(d). The Act also provides for the establishment of a task force by the HUD Secretary, in consultation with the Administrator of the Environmental Protection Agency, to make recommendations on expanding resources and efforts to evaluate and reduce lead-based paint hazards in private housing. 42 U.S.C. § 4852a. The HUD Secretary is required to consult on an ongoing basis with this task force as well as with the Administrator of the EPA, the Director of the Centers for Disease Control, and other federal agencies concerned with lead poisoning prevention. 42 U.S.C. § 4852b. It also requires the HUD Secretary, in consultation with the Administrator of the EPA, the Secretary of Labor, and the Secretary of Health and Human Services (acting through the Director of the Centers for Disease Control), to issue guidelines for the conduct of federally supported work involving risk assessments, inspections, interim controls, andabatement of lead-based paint hazards. 42 U.S.C. § 4852c. The Act further requires the HUD Secretary, in cooperation with other federal agencies, to conduct research on strategies to reduce the risk of lead exposure from other sources, including exterior soil and interior lead dust in carpets, furniture, and forced-air ducts. 42 U.S.C.A. § 4854.

The vast majority of the Act thus directs action by certain federal officials to help attack the problem of lead paint exposure. But in addition to these regulatory requirements, one aforementioned section of the Act places specific burdens on private sellers to provide various disclosures to buyers and provides for a private civil action if the disclosures are not provided. 42 U.S.C.A. § 4852d. This is the only section of the Act that provides for private civil liability,¹ and any person who knowingly violates the disclosure provisions is jointly and...