Thomas v. Bragg Cmtys.

1

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.

No. 5:22-CV-226-D

United States District Court, E.D. North Carolina, Western Division

January 17, 2023

ORDER

JAMES C. DEVER, UNITED STATES DISTRICT JUDGE.

On June 6, 2022, Anny 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 complaint in this court alleging breach of warranty of habitability, violations of North Carolina's Unfair and Deceptive Trade Practices Act (“UDTPA”), breach of contract, negligence, violation of Residential Lead-Based Paint Hazard Reduction Act, and temporary recurrent private nuisance against Bragg Communities, LLC, Corvias Management-Army, LLC, Bragg-Piceme Partners, LLC, and Corvias Construction, LLC (collectively “defendants”) [D.E. l].^[1] On August 29, 2022, defendants moved to dismiss [D.E. 10] 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.

I.

Army Staff Sergeant 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] ¶ 91. Defendants constructed, marketed, and maintained the residence. Id. at ¶¶91,97,99. “Upon move-in” plaintiffs discovered an infestation of box elder beetles in the residence and backyard. Id. at ¶ 103. Over time, plaintiffs noticed more defects in and around the residence. At some point, plaintiffs learned of lead paint in the residence, defective light switches that “crackled 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 ¶¶ 108-11,118-19. When plaintiffs attempted to contact defendants to have them remedy these defects, defendants failed to remedy the problems or fixed them much later. Id. at ¶¶ 108-09. As for the mold, defendants did not attempt to properly clean the mold. Instead, defendants simply painted over the wall. Id. at ¶¶ 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 ¶ 114. In 2019, plaintiffs moved out of the residence. Id. at ¶ 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 ¶¶ 119,121.

II.

A motion to dismiss under Rule 12(b)(6) tests 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, 554-63 (2007); Coleman v. Md, Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), affd, 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 “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 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 facts and reasonable inferences “in the light most favorable to the [nonmoving party].” Massey v, Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville. 708 F.3d 549,557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 576 U.S. 155 (2015). A court need not accept as true a complaint's legal conclusions, “unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678-79. Rather, a plaintiffs factual allegations must “nudge[ ] [her] claims,” Twombly, 550 U.S. at 570, beyond the realm of “mere possibility” into “plausibility.” Iqbal, 556 U.S. at 678-79.

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 435,448 (4th Cir. 2011); see Fed.R.Civ.P. 10(c); Goines v. Valley Cmty, Servs. Bd., 822 F.3d 159,166 (4th Cir. 2016); Thompson v. Greene, 427 F.3d 263,268 (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 summary judgment. See, e.g., Fed.R.Evid. 201; Tellabs, Inc, v. Makor Issues & Rts., Ltd., 551 U.S. 308,322 (2007); Philips v. Pitt Cnty. Mem'l Hosp., 572 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 of the complaint.” Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244,250 (4th Cir. 1993); see Goodman v. Praxair, Inc., 494 F.3d 458,464 (4th Cir. 2007) (en banc), hi other words, the complaint must clearly allege “all facts necessary to the affirmative defense.” Goodman. 494 F.3d at464. When the facts necessary to the affirmative defense are not apparent on the face of the complaint, discovery (not dismissal) is appropriate. See, e.g., 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-336,2021WL4163562 (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. Cork & Seal Co. v. Parker, 462 U.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 class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Crown. Cork, 462 U.S. at 353-54. Although the Supreme Court of North Carolina has not decided the issue, the North Carolina Court of Appeals 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.2d655,661 (2001)(“We therefore hold that the statutes of limitations 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 Piper.]”). Thus, sitting in diversity, this court applies the holding of the North Carolina Court of Appeals in Scarvey. See Town of Nags Head v. Toloczko, 728 F.3d 391,398 (4th Cir. 2013).

Plaintiffs are in the putative class in Page. The plaintiffs in Page are also military personnel and their families who are asserting very similar claims against the defendants in this case regarding their rental housing in Fort Bragg. Compare Page, 2021 WL4163562,at*l with Compl. Therefore, under Scarvey and American Pipe, the statute of limitations for plaintiffs is tolled for the period from 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 ‘upon move-in.'” [D.E. 11] 8; [D.E. 13] 6-7. Defendants, however, misread plaintiffs' 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.” Compl. at ¶ 103. The complaint is unclear about when plaintiffs discovered defects in the lighting and windows. Id. at ¶¶ 104-09. The complaint also is unclear about when plaintiffs discovered the clogged HVAC duct. See Id. at ¶¶ 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 ¶¶ 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 Page, the court declines to dismiss all claims as time-barred. See, e.g., 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 of the RRAA must have existed during the limitations period.” [D.E 13] 10-11; see N.C. Gen. Stat § 42-46. Plaintiffs respond that the statute of limitations under the RRAA only limits...