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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ Charletta Lewis ) ) ) Plaintiff, ) ) v. ) ) Michael Ressom ) ) Defendant. ) __________________________________ )

Civil Action No. 12-cv-00037-BAH

Memorandum Supporting Motion to Dismiss Defendant is a non-African American man Complaint 3. Defendant:

Michael Ressoms Naturalization Certificate photograph as an Ethiopian immigrant

Introduction and Summary Plaintiff has brought what should be a routine Superior Court commercial landlord-tenant case into federal court under the guise of an unadorned 42 U.S.C. 1981 claim, accompanied by two supplemental local law claims. Plaintiff alleges that: (a) she is an African-American and

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that Defendant is a non-African American; and (b) on purely unspecified information and belief she contends that Defendant has treated her differently in some undefined way than other, unidentified, lessees who were supposedly outside of her protected class. Defendant is an African-American, as certified copies of his D.C. drivers license and naturalization certificate confirm. The core 1981 theorys facial incongruities are all the more pronounced because the defendant leased the premises to Plaintiff (and her husband, who hasnt joined this suit) just a few months earlier. That was something Defendant presumably wouldnt have done if he harbored intraracial animus. Why he would intentionally discriminate against a fellow black and in favor of unidentified others of a different albeit undefined race is left unexplained by Plaintiff. The Complaint is deeply flawed and should be dismissed for those and a multitude of other reasons. Essentially [t]his is simply not a federal civil rights action but instead[] is a landlord and tenant dispute falling squarely within the jurisdiction of the District of Columbia courts.1 As we explain below: 1. Lack of Subject-Matter Jurisdiction. The federal cause of action fails to state a claim upon which relief can be granted and should be dismissed. There is no diversity jurisdiction on the state-law claims, because the Plaintiff and the Defendant are non-diverse. Once the federal claim is dismissed, there is no reason for the Court to exercise supplemental jurisdiction. Therefore, the case should be dismissed in its entirety.

Amiri v. Gelman Mgmt. Co., 734 F. Supp. 2d 1, 4 (D.D.C. 2010) (dismissing 1981 count and remanding action).

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2. Other Claims. Plaintiffs local law claims (fraud and breach of contract) also suffer from independent deficiencies that warrant dismissal. These include the Complaints (a) failure to plead more than conclusory allegations, contrary to the dictates of Twombly and Iqbal; and (b) effort to fashion a breach of contract claim that contradicts the Parties governing leases. The Complaint Plaintiff asserts three counts against defendant. Her claims arise from her lease of commercial premises from Defendant in July 2011.2 A. What Plaintiff alleged and what she has failed to disclose.

Plaintiff alleges that, at some unspecified place and time prior to entering the lease (actually there are two leases dated six weeks apart for two floors of the building), Defendant falsely assured her the premises were in good order and up to code. Plaintiff further alleges that that Plaintiff made these representations as well as undefined omissions -- in order to defraud her. When she purportedly complained about it, Defendant said he had a signed contract.3 Plaintiff claims that Defendant allowed unnamed others to make unparticularized illegal changes and alterations.4 Finally, she makes the bald assertion that [u]pon information and belief Defendant has leased his properties [sic] to members outside of Plaintiffs protected class and has not treated these persons they [sic] way Plaintiff has been treated.5

Complaint 4. Complaint 7. Id. 8. Id.


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Plaintiffs Causes of Action

1. Federal Claim. The only federal claim asserted is in Count I, where Plaintiff alleges race discrimination in violation of 42 U.S.C. Section 1981.6 But with respect to this claim, the Complaint does not allege any specific facts that lead Plaintiff, who describes herself as an African-American woman, to claim she has been the victim of discrimination based on race. Tellingly, her, information-and-belief charges identify no comparator lessee who is outside of the protected class, let alone their race, or any specific way in which any unidentified former lessee of undefined race was favored and the Plaintiff disfavored. An equally troubling and revealing aspect of the Complaint is that it is objectively at odds with reality in a material respect. The Plaintiff claims that the Defendant is a non-African American man.7 The obvious purpose of this is to bolster Plaintiffs race discrimination claim by implying that he isnt a black and that he is motivated by discriminatory animus. However the public records confirm that Michael Ressom is black and considers himself so. We have attached from the public record a certified copy of his D.C. Department of Motor Vehicles (DMV) drivers license with his photograph in it,8 together with his Naturalization Certificate, which also bears his photograph. It is perfectly clear to anyone (other than a litigant seeking an excuse to operate a njghtclub without paying rent) that Mr. Ressom is literally an African-American; the naturalization papers also state his birthplace as Ethiopia.9

Id. 11-18. Complaint 3. On a motion to dismiss under Rule 12(b)(6), a court may consider documents that are a matter of public record. See n.32, infra. See Grp. Ex. 1A-B attached.

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2. Breach of Contract. In Count II of the Complaint, Plaintiff asserts that Defendant assured her at some unspecified time that the building was up to code but in fact Defendant made or allowed [unnamed] others to make [unspecified] illegal changes to the property and [undefined] significant alterations and repairs all of which were made before Plaintiff rented it.10 According to Plaintiff, this led the D.C. Department of Consumer and Regulatory Affairs to issue a stop-work order on her efforts to open a jazz club, which supposedly delayed its opening.11 (Left undisclosed is that the club is open; Plaintiff has unilaterally decided not to pay any rent and instead opted to sue and have the proverbial best of all worlds.) Plaintiff has failed to attach copies of the two governing leases to the Complaint, and perhaps for good reason. For the Courts convenience, they are attached.12 Each and every page is initialed by Plaintiff and her husband. Both leases state in plain-English that the premises were rented As Is. Each lease places on the tenant the burden of securing regulatory compliance and of making repairs and maintenance. And both have an integration clause.13


Complaint 19-20. Id. 21. On a motion to dismiss under Rule 12(b)(6), a court may consider key documents that are referred to in the complaint, even if they werent attached to it. See n. 32, infra. See Grp. Ex. 2A-B attached. The As-Is clause appears in Paragraph 16 of the June 15, 2011 lease for the second floor of the premises; the repairs obligations are in Paragraphs 85 and 87; and the Integration Clause appears in Paragraph 115 of the lease. Grp. Ex. 2A. The As-Is clause appears in Paragraph 16 of the July 27, 2011 lease for the first floor of the premises; the repairs obligations are in Paragraphs 79 and 81 and the Integration Clause appears in Paragraph 109of the second lease. Grp. Ex. 2B.




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3. Fraud. Plaintiff alleges in Count III of the Complaint that Defendant is liable for fraud on account of Mr. Ressoms representations and omissions toward Plaintiff.14 But first of all, there is no reference anywhere in the Complaint to any particular omission. And while the untrue representations are said to be that the property was in good order and up to code, Plaintiff neither states where or when these statements were made, or whether it was in connection with the first lease or the later lease.15 Nor does the Complaint inform us what, specifically, wasnt in good order or not up to code and was so significant that DCRA declined to issue a Certificate of Occupancy. Nor, as stated earlier, does Plaintiff attach the governing leases, which twice state in easily readable font that the two floors of the building are leased as is and require her to do repairs.16 Argument I. Pleading Standards and Rule 12(b)(6).

Fed. R. Civ. P. 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief. In two rulings, the U.S. Supreme Court tightened the pleading standards under Fed. R. Civ. P. 8(a), with implications for motions to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6).17


Complaint 24. Id., 4, 24-25. N. 13, supra. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).




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Under the Twombly/Iqbal standard, [a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.18 Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.19 As the Supreme Court ruled in Iqbal, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.20 The plausibility standard, in turn, asks for more than a sheer possibility that a defendant has acted unlawfully. 21 Where a complaint pleads facts that are merely consistent with a defendants liability, it stops short of the line between possibility and plausibility of entitlement to relief. 22 A complaint must be dismissed if the factual allegations have not nudged [plaintiffs] claims across the line from conceivable to plausible.23 Because a complaint needs some information about the circumstances giving rise to the claims,24 the doors of discovery do not unlock for a plaintiff armed with nothing more than conclusions25 In all events, a court need not accept inferences drawn by [the] plaintif[f] if such inferences are unsupported by the facts set out in the Complaint.26 Nor is the court bound to

Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555). Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 557). qbal, 129 S. Ct. at 1949. Id. Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Bell Atl. Corp. v. Twombly, 550 U.S. at 570. Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 n.4 (D.C. Cir. 2008) (emphasis original). Iqbal, 129 S. Ct. at 1950. Kowal v. MCI Commcns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).









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accept a plaintiffs legal conclusions.27 Where the plaintiff has not stated an actionable claim even if all of the complaints factual allegations are accepted and construed in the light most favorable to the plaintiff, a suit should be dismissed.28 These principles bring up another concern present here: the use of information and belief allegations. Such claims must only be formed after an inquiry reasonable under the circumstances;29 the pleader must exercise care and have a solid basis for pleading on information and belief.30 Reciting a laundry list of vague factual statements based upon information and belief and then baldly asserting that defendants acts violate federal statutes is insufficient.31 Rather, such allegations must be accompanied by a statement of the facts upon which the belief is founded.32


Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997). See also Hayden v. Paterson, 594 F.3d 150, 161 (2nd Cir. 2010) (A court can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.) (quoting Iqbal, 129 S. Ct. at 1950). Gilvin v. Fire, 259 F.3d 749, 756 (D.C. Cir. 2001); Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). Sanders v. Grenadier Realty, Inc., 367 Fed. Appx. 173, 175 (2nd Cr. 2010) (affirming dismissal of claim under 42 U.S.C. 1982) (citing Rule 11, F.R. Civ. P.). 5 Wright, Miller & Kane, Federal Practice, 1225 at 301 (Civil 3rd ed.). George & Co., LLC v., Inc., 2011 U.S. Dist. LEXIS 143365, *7 (M.D. Fla. Dec. 13, 2011).






Gorokhovsky v. City of New York, 2011 U.S. Dist. LEXIS 54941, *20 (S.D.N.Y. May 19, 2011)
(dismissing claim; Plaintiff's mere belief is insufficient without specific factual allegations to enable the Court to evaluate [his] information and belief assertions.) (citing Rose v. Goldman, Sachs & Co., Inc., 163 F. Supp. 2d 238, 242 (S.D.N.Y. 2001); Dean v. Westchester Cnty. Dist. Attorney's Office, 119 F. Supp. 2d 424, 430 (S.D.N.Y. 2000) (allegation information and belief that white, male employees similarly situated were not disciplined for similar failures was not a sufficient basis to infer discrimination)).

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A final point is in order before turning to the separate rules governing fraud claims. Although courts normally dont consider matters outside the pleadings in the Rule 12(b)(6) analysis, they may consider any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record.33 II. Pleading Standards and Rule 9(b). Because Plaintiff has also accused Mr. Ressom of fraud, that part of her charges is governed by Rule 9(b), F.R.Civ.P., which requires that [i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Various rationales support this heightened pleading requirement,34 among them being the concepts that [b]ecause 'fraud encompasses a wide variety of activities, the requirements of Rule 9(b) guarantee all defendants sufficient information to allow for preparation of a response35 and that claimants should be deterred from adding broad fraud allegations to induce advantageous settlements.36 Hence, while Rule 9(b)s particularity requirement does not abrogate Rule 8's general requirement that a pleading contain a short and plain statement of the claim, the pleader must provide a higher degree of notice by adequately alleging all the elements for the cause of

Arencibia v. 2401 Restaurant Corp., 699 F. Supp. 2d 318, 323 (D.D.C. 2010). See also Sears v. Magnolia Plumbing, Inc., 778 F. Supp. 2d 80, 84 (D.D.C. 2011); Uhar & Co., Inc. v. Jacob, 710 F. Supp. 2d 45, 49 n.5 (D.D.C. 2010); Navab-Safavi, v. Broadcasting Bd. of Governors, 650 F. Supp. 2d 40, 50 (D.D.C. 2009) (citing authorities), affd, 637 F.3d 311 (D.C. Cir. 2011); Zelaya v. UNICCO Serv. Co., 587 F.Supp.2d 277, 282 (D.D.C. 2008); Marshall v. Honeywell Tech. Solutions, Inc., 536 F. Supp. 2d 59, 65 (D.D.C. 2008); Hinton v. Corrections Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009); Keith v. United States R.R. Ret. Bd., 2006 U.S. Dist. LEXIS 50598, at *9 (D.D.C. July 25, 2006). 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure 1296 (2004). United States ex rel Joseph v. Cannon, 642 F.2d 1373, 1385 (D.C. Cir. 1981). Firestone v. Firestone, 76 F.3d 1205, 1211 (D.C. Cir. 1996); Shields v. Washington Bancorp., 1992 U.S. Dist. LEXIS 4177, *12 (D.D.C. Apr. 7, 1992).




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action and by stating with particularity the supporting factual allegations for her claim37 Finally, conclusory allegations that a defendant's actions were fraudulent and deceptive are not sufficient to satisfy 9(b),38 and the plaintiff must specifically allege the time, place, and contents of any affirmative misrepresentation.39 By extension, a plaintiff claiming fraud through suppression of facts must identify the facts concealed and/or acts of concealment with particularity. In other words, Rule 9(b) requires that the pleader provide the who, what, when, where, and how with respect to the circumstances of the fraud.40 III. The federal claim of race discrimination should be dismissed. Count I of the Complaint is brought under 42 U.S.C. 1981.41 This federal-question theory suffers from the dubious distinctions of failing to state a claim and of being implausible.


In re U.S. Office Prod. Sec. Litig., 326 F. Supp. 2d 68, 74 (D.D.C. 2004) (citing One-O-One Enters., Inc. v. Caruso, 668 F. Supp. 693, 697-99 (D.D.C. 1987), aff'd, 848 F.2d 1283 (D.C. Cir. 1988). Shekoyan v. Sibley Intl Corp., 217 F. Supp. 2d 59, 73 (D.D.C. 2002). United States ex rel. Totten v. Bombardier Corp., 286 F.3d 542, 552 (D.C. Cir. 2002) Anderson v. USAA Cas. Ins. Co., 221 F.R.D. 250, 253 (D.D.C. 2004). Cf., Burman v. Phoenix Wolrdwide Industries, 384 F.Supp.2d 316, 325 (D.D.C. 2005) (citing DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990)). Complaint 11-18. Section 1981 states, in relevant part, as follows:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . . .42 U.S.C. 1981(a) (emphasis added.)






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First, the race discrimination claim is conclusory in the extreme. It has long been the law, indeed articulated in decisions pre-dating Iqbal and Twombly, that one seeking relief under 42 U.S.C.S. 1981 must provide specific allegations of fact.42 That concern is all the more true today. A plaintiff's mere invocation of her race in the course of a claims narrative does not automatically entitle her to pursue relief under 42 U.S.C.S. 1981.43 Yet thats basically all that Plaintiff has done: she has alleged no facts whatsoever to suggest that Defendant treated other tenants more favorably and that those tenants were not of Plaintiffs race. That absence is fatal to a 1981 claim.44


Koch v. Yunich, 533 F.2d 80, 85-86 (2nd Cir. 1976) (cited by Consejo Puertorriqueno Por La Paz v. Director, Federal Bureau of Investigation, 458 F. Supp. 1041, 1042 (D.D.C. 1978) and Covert v. Washington Hilton Hotel, 1983 U.S. Dist. LEXIS 10892, *14 (D.D.C. Dec. 12, 1983)). See also Bray v. RHT, Inc.,748 F. Supp. 3, 5 (D.D.C. 1990) (To state a claim under Section 1981 a plaintiff . . . must allege some facts that demonstrate that race was the reason for the defendant's actions.). Mekuria v. Bank of Am., 2011 U.S. Dist. LEXIS 108649, *9 (D.D.C. Sept. 23, 2011) (dismissing Section 1981 claim) (citing Mesumbe v. Howard Univ., 706 F. Supp. 2d 86, 92 (D.D.C. 2010) (same), affd, 2010 U.S. App. LEXIS 21659 (D.C. Cir. Oct. 19, 2010); Amiri v. Gelman Management Corp., 734 F.Supp.2d at 3. See also Francis v. Giacomelli, 588 F.3d 186 (4th Cir.2009) (racial discrimination allegations deemed conclusory and insufficient to state Section 1981 claim where parties were of different races and only factual allegation was that defendants never initiated termination of employment action against white employees). Mekuria, 2011 U.S. Dist. LEXIS 108649, at *10 (citing Middlebrooks v. Godwin Corp., 722 F. Supp. 2d 82, 88 (D.D.C. 2010) (dismissing section 1981 claim), affd 424 Fed. Appx. 10 (D.C. Cir. 2011).



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Second, Plaintiffs threadbare discrimination claim is not advanced by her one-line information and belief theory that other tenants outside the protected class were treated more favorably. As Section 1981 cases construing equally conclusory, formulaic statement[s] 45 have confirmed, what she has offered is nothing more than legal conclusions devoid of any factual support and do[es] not meet the pleading standard required under Iqbal and Twombly.46 Third, leaving aside Plaintiffs utter failure to identify anyone outside of the protected class who was treated favorably, the claim as stated is implausible. The fact of the matter is that none of the factual allegations in plaintiff's complaint suggest a racially discriminatory motive for defendant[s]treatment of plaintiff.47 To be sure, we do not claim that as a matter of law an African-American cannot discriminate against a racial cohort.48 On the other hand this plaintiff is arguing that the same defendant who entered two contractual relationships with her discriminated against her almost immediately afterwards. The normal inference would be to the contrary: if Mr. Ressom was prejudiced towards blacks then why would he have leased to Plaintiff?49

King v. Triser Salons, LLC, 2011 U.S. Dist. LEXIS 113410, *10 (D.D.C. Oct. 3, 2011) (dismissing D.C. Human Rights Act claim). Mekuria, 2011 U.S. Dist. LEXIS 108649, at *12-*13 (dismissing information and belief Section 1981 claim); Mesumbe, 706 F.Supp.2d at 94 (same). Middlebrooks v. Godwin Corp., 722 F. Supp. 2d at 88. See also Mekuria, 2011 U.S. Dist. LEXIS 108649, at *10-*11; Alexander v. Wash. Gas Light Co., 481 F. Supp. 2d 16, 30 (D.D.C. 2006) (dismissing 1981 claim; plaintiff has not pled any facts or made any suggestion of racially discriminatory motive on the part of [d]efendants)). Mitchell v. AMTRAK, 407 F. Supp. 2d 213, 236 (D.D.C. 2005). See Czekalski v. Peters, 475 F.3d 360, 368-69 (D.C. Cir. 2007) (discussing same-actor inference, noting that the fact that the same person who reassigned the plaintiff for allegedly discriminatory reasons also hired her and even had recommended her for a promotion is probative evidence against the claim that he harbored a general animus against female employee).. See also Chiaramonte v. Fashion Bed Group, 129 F.3d 391, 399 (7th Cir. 1997) (same actor gives rise to strong inference); Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) (same).





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In the context of a summary judgment motion such an occurrence would be deemed so sufficiently out of the mainstream as to demand a substantial preliminary showing before the plaintiff could go further.50 Given the other serious facial shortfalls identified above with respect to the 1981 claim and the palpable lack of due diligence in formulating it, the same concerns afford further reasons to dismiss Plaintiffs Section 1981 claim.51 IV. There is no diversity jurisdiction and hence there is no cause for the Court to exercise supplemental jurisdiction. If the Court dismisses the federal claim in Count I of the Complaint, then Plaintiffs Complaint can only proceed if there is a basis for subject-matter jurisdiction other than federalquestion jurisdiction.52 Plaintiff does not allege in the Complaint that there is diversity


Harper v. C.R. Eng., Inc., 2011 U.S. Dist. LEXIS 86375, *16 (N.D. Ind. Aug. 3, 2011); Hansborough v. Elkhart Parks & Rec. Dept, 802 F. Supp. 199, 207 (N.D. Ind. 1992) (Plaintiffs mere allegations about Metzlers comments and behavior during the investigation are insufficient. Title VII is not a general bad acts statute; it only addresses discrimination on the basis of race, sex, religion, and national origin. . . This concern causes the court to require a substantial preliminary showing when one black person alleges discrimination by another black person, as here.) (quoting Hughes v. Derwinski, 967 F.2d 1168, 1173 (7th Cir. 1992)) (other citations omitted). Mr. Ressom purchased the property on December 14, 2009, from Howard University. A copy of the deed is attached as Exhibit 3. He represents that he only had two tenants prior to Plaintiff. One was an African-American who unsuccessfully sought a position on the D.C. Council. The other was an incumbent black council members campaign committee. It would be considered black for purposes of Section 1981 claims. See Macedonia Church v. Lancaster Hotel Ltd. Pship, 498 F. Supp. 2d 494, 499-501 (D. Conn. 2007) (predominantly African-American congregation had standing to sue hotel for allegedly racially discriminatory practices); Florence Urgent Care v. Healthspan, Inc., 445 F.Supp.2d 871, 876-877 (S.D. Ohio 2006) (center owned by doctors of Arab descent had standing). 28 U.S.C. 1331.




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jurisdiction.53 However, the Supreme Court has consistently interpreted 1332 as requiring complete diversity:54 Here, the Plaintiff and the Defendant reside in the District of Columbia, according to the caption of the Complaint. Thus complete diversity is lacking. Since there is neither federal-question nor diversity jurisdiction in this case, Plaintiffs claims can only go forward if the Court decides to exercise its supplemental jurisdiction under 28 U.S.C. Section 1367. That statute provides that a district court may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction.55 Federal courts routinely decline to exercise supplemental jurisdiction, and proceed to dismiss or remand lawsuits, once all claims that could originally have been filed in federal district court are dismissed.56 There is no reason to proceed differently in this case, since the


28 U.S.C. 1332. Plaintiff has the burden of pleading sufficient facts to support the Courts exercise of diversity jurisdiction. See, e.g., Meng v. Schwartz, 305 F. Supp. 2d 49, 55 (D.D.C. 2004) (in an action invoking a courts diversity jurisdiction under 1332, it is the invoking partys burden to show that complete diversity exists). Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005) (citations omitted). See Doe v. Exxon Mobil Corp., 654 F.3d 11, 71 (D.C. Cir. 2011) (Complete diversity requires that no two parties on opposite sides of an action can be citizens of the same state.) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806)). 28 U.S.C. 1367(c)(3). See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.7 (1988) ([I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under pendent jurisdiction judicial economy, convenience, fairness, and comity will point toward declining to exercise jurisdiction over the remaining state-law claims.). See also Ibrahim v. Latham & Watkins, 331 Fed. Appx. 757, 758 (D.C. Cir. 2009); Shekoyan v. Sibley Intl, 409 F.3d 414, 423-24 (D.C. Cir. 2005); Shaw v. District of Columbia, 2011 U.S. Dist. LEXIS 133168, at **14-15 (D.D.C. Nov. 18, 2011); Amiri, 734 F.Supp.2d at 4-5; Mesumbe, 706 F.Supp.2d at 93; Middlebrooks v. Bonner Kiernan Trebach & Crociata, 671 F. Supp. 2d 61, 64 (D.D.C. 2009).




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non-federal count of the Complaint involve routine claims under District of Columbia law cognizable in the Superior Court, and the dismissal of this case is being sought at its outset. Therefore, the Complaint should be dismissed in its entirety. V. Plaintiff has failed to state a claim for breach of contract. Even if the Court does not dismiss this case in its entirety, it should dismiss the remaining two Counts for failure to state a claim upon which relief can be granted. Count II seeks damages on the theory that the demised premises werent up to code and Plaintiff had to expend funds to secure Certificates of Occupancy.57 This Count should be dismissed because it is based on a construction that ignores the leases. The rules of construction are straightforward. Leases of real property are to be construed as contracts.58 Thus each lease is required to be read by looking first at the face of the language itself, giving that language its plain meaning, without reference to any rules of construction. 59 Conversely, [i]f the court finds that the contract has more than one reasonable interpretation and therefore is ambiguous, then the court - after admitting probative extrinsic evidence - must


Complaint 19-23. Capital City Mortg. Corp. v. Habana Village Art & Folklore, Inc., 747 A.2d 564; 567 (D.C. 2000) (citing Hart v. Vermont Inv. Ltd. Partnership, 667 A.2d 578, 582 (D.C. 1995); Management Partnership, Inc. v. Crumlin, 423 A.2d 939, 941 (D.C. 1980)). Capital City Mortg. Corp., 747 A.2d at 567 (citing Sacks v. Rothberg, 569 A.2d 150, 154 (D.C. 1990) (quoting Kass v. William Norwitz Co., 509 F. Supp. 618, 625 (D.D.C. 1980)); Sagalyn v. Foundation for Preservation of Historic Georgetown, 691 A.2d 107, 111 (D.C. 1997) (stating that words are given their ordinary and usual meaning.))).



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determine what a reasonable person in the position of the parties would have thought the disputed language meant.60 In this case both of the governing commercial leases, as earlier stated, provide squarely that the premises are leased as is. Each places on the tenant the burden of securing regulatory compliance and of making repairs and maintenance. And each contains an integration clause. In these circumstances, Plaintiffs breach of contract theory should be rejected.61 In an effort to circumvent this result, Plaintiff seeks to argue for an exception to the rule by claiming she was defrauded into entering the agreements by virtue of Defendants statements that the premises were in good repair and up to code but apparently wasnt injured so much as to warrant seeking rescission: she has elected to keep the lease (and not pay rent) and seek damages. This theory will be addressed in the succeeding section of this memorandum, where Defendant will demonstrate that Plaintiffs fraud allegations are also insufficient to state a claim.


Capital City Mortg. Corp., 747 A.2d at 567 (citing and quoting American Bldg. Maintenance Co. v. L'Enfant Plaza Properties, Inc., 655 A.2d 858, 861 (D.C. 1995), Intercounty Constr. Corp. v. District of Columbia, 443 A.2d 29, 33 (D.C. 1982). BSacks v. Rothberg, 569 A.2d 150, 154 (D.C. 1990)). Capital City Mortg. Corp. v. Habana Village Art & Folklore, Inc., 747 A.2d at 568-570 (tenant found responsible for replacement of heating and cooling units where the commercial lease was unambiguous on its face and the lease stated tenant took the property "as is.).


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VI. Plaintiffs fraud claim should be dismissed. Although Count III of the Complaint purports to charge fraud,62 it suffers from several serious deficiencies. First, the Complaint just accuses Defendant of telling Plaintiff the building was in good shape and up to code and that afterwards she encountered problems with the D.C. inspectors over certain unpermitted build-outs.63 But nowhere has Plaintiff stated when and where Defendant made misrepresentations about the premises, or which lease(s) the statement(s) preceded.64 Second, the plaintiff has alleged that Defendant omitted to disclose facts65 but she has failed to state what he didnt reveal. That allegation is facially off-base, for when a fraud claim is said to be based on an omission, the plaintiff must specify the person responsible for the omission, its context, and the manner in which the omission supposedly caused injury.66


Complaint 24-26. Id. 4, 7-8. Anderson v. USAA Cas. Ins. Co., 221 F.R.D. at 253 (condominium owners general allegations that cleanup company performed remediation services in the mold-contaminated areas of the building did not put it on notice as to the time, place, and content of its alleged misrepresentations or omissions). See also Stevens v. InPhonic, Inc., 662 F. Supp. 2d 105, 114 (D.D.C. 2009); In re Newbridge Networks Sec. Litig., 962 F. Supp. 166, 172-175 (D.D.C. 1997) (dismissing, in part, fraud claims). Complaint 25. Solutia, Inc. v. FMC Corp., 456 F.Supp.2d 429, 449-450 (S.D.N.Y. 2006) (citing Odyssey Re (London) Ltd. v. Stirling Cooke Brown Holdings Ltd., 85 F. Supp. 2d 282, 293 (S.D.N.Y. 2000) (collecting cases)) Shields v. Washington Bancorporation, 1992 U.S. Dist. LEXIS 4177, *13 (D.D.C. April 7, 1992) (plaintiff alleging fraudulent omissions must, to some extent, identify the information which should have been disclosed). See also Wessa v. Watermark Paddlesports, Inc., 2006 U.S. Dist. LEXIS 32412, *10-*12 (W.D. Wash. May 22, 2006). Cf., SEC v. Nacchio, 438 F. Supp. 2d 1266, 1277-78 (D. Col. 2006) (complaint must allege particular information that should have been disclosed, the reason it should have been disclosed, and the person who should have disclosed it); Burman v. Phoenix Worldwide Indus., 384 F. Supp. 2d at 328 (omission must be identified with particularity).





Case 1:12-cv-00037-BAH Document 4-1

Filed 02/07/12 Page 18 of 18

Third, in order to state a claim for fraud a plaintiffs allegations must indicate that their reliance on the allegedly fraudulent representation was reasonable.67 Dismissal for failure to state a claim is proper when no reasonable person would have relied on the representation.68 Here, assuming the truth of Plaintiffs description of Defendants oral assurances, no reasonable person could have relied on those statements, given the written leases express statements that the premises were leased in an as is condition and requirement that the Plaintiff bear responsibility for securing DCRA compliance and making repairs. Conclusion For the foregoing reasons, the Complaint should be dismissed in its entirety.

Respectfully submitted,

/s/ Stephen C. Leckar Stephen C. Leckar, No. 281691 Shainis & Peltzman 1850 M Street, N.W., Suite 240 Washington, D.C. 20036 (202) 742-4242

/s/ Neil D. Goldman Neil D. Goldman, No. 943860 Goldman & Van Beek 510 King Street, N.W., Ste. 416 Alexandria, VA 22314 (202) 684-3260

Attorneys for Defendant


One-O-One Enter., Inc. v. Caruso, 848 F.2d 1283, 1286 (D.C. Cir. 1988). Alicke v. MCI Comm. Corp., 111 F.3d 909, 912 (D.C. Cir. 1997); In re U.S. Office Prods. Co. Sec Litig., 251 F. Supp. 2d at 105 (District of Columbia courts have ruled that no reasonable trier of fact could conclude that a plaintiff reasonably relied on oral representations contradicted by express written provisions.).