Military families allege ‘reprehensibly poor’ housing

Where military families sued the landlord and property managers allegedly responsible for housing at Fort Belvoir, alleging reprehensibly poor housing conditions, including water intrusion, mold growth and pest infestations, and that the defendants have engaged in a systematic practice of misrepresenting that repairs had been performed, they plausibly alleged a claim under the Virginia Consumer Protection Act.

Background

At the center of this putative class action is a landlord-tenant dispute concerning the allegedly poor condition of plaintiffs’ military family housing at Fort Belvoir. Defendant Fort Belvoir Residential Communities LLC is the landlord for the privatized military housing at issue here. Defendant Michaels Management Services Inc., or MMS, is a former property manager for Fort Belvoir, and defendant MMS Army LLC is the current property manager. Defendants have filed a motion to dismiss or, in the alternative, to strike portions of the third amended complaint.

VCPA claim

Plaintiffs assert that defendants are liable under the Virginia Consumer Protection Act, or VCPA, for engaging in a systematic practice of misrepresenting that repairs had been performed at plaintiffs’ military housing units when they in fact had not been. To plausibly state a claim under the VCPA, plaintiffs “must allege (1) fraud, (2) by a supplier, (3) in a consumer transaction.”

Defendants do not contest that they are suppliers within the meaning of the VCPA or that the purported misrepresentations occurred in the course of consumer transactions, nor could they reasonably do so. The court’s analysis will therefore focus on the fraud element of a VCPA claim.

Defendants argue that plaintiffs’ allegations do not pass Rule 9(b) muster because plaintiffs fail to specifically identify any agents of defendants who purportedly made the misrepresentations. The court disagrees and finds that Rule 9(b)’s particularity requirement is satisfied here.

Importantly, the alleged misrepresentations relate to facts (rather than opinions), such as the extent of moisture, mold or pest infestation problems, and whether those problems had been properly remediated. Furthermore, throughout the third amended complaint, plaintiffs allege specific timeframes during which defendants’ maintenance workers made misrepresentations to them.

The court thus concludes that the alleged misrepresentations are sufficiently detailed to facilitate discovery and the preparation of a defense. And in any event, there is substantial pre-discovery evidence (in the form of photos of the poor housing conditions included in the third amended complaint) that the incidents alleged did in fact occur. Accordingly, dismissal of plaintiffs’ VCPA claim would not serve the purposes of Rule 9(b). That plaintiffs did not name the specific maintenance workers who made misrepresentations to them does not undermine such a finding.

Additionally, defendants misconstrue the relevant law in arguing that the VCPA claim fails because plaintiffs do not allege facts indicating that the maintenance workers knew the statements they made were false. While a claim for actual fraud in Virginia requires a showing of a false representation made knowingly, a VCPA claim contains no such requirement. Accordingly, this court finds that plaintiffs have sufficiently pleaded a VCPA claim.

Commonality

Defendants also argue that because 15 out of the 32 plaintiffs may be time-barred from bringing a VCPA claim, the claim lacks the requisite common question of law and claims and defenses typical to the class and should thus be dismissed. While the issue defendants raise is well-taken, case law from within the Fourth Circuit makes clear that “analysis of a prospective class’s compliance with Rule 23 is not appropriately considered on a motion to dismiss, but should instead be addressed [o]n a motion brought pursuant to Rule 23(c)(1)(A).” Accordingly, the court declines to dismiss the VCPA claim on this ground but will allow defendants to renew their statute of limitations argument in opposition to plaintiffs’ pending motion to certify class.

Motion to strike

Defendants argue that paragraph 696 should be stricken because it includes accusations against a non-party and merely serves to prejudice defendants by suggesting that they are somehow responsible for events involving entirely different circumstances. The court finds that striking these allegations is appropriate. Plaintiffs essentially conflate the conduct of Clark Realty, a non-party, with that of its successor property managers, MMS and MMS Army. That is precisely the type of prejudicial and immaterial allegation that Rule 12(f) is intended to strike.

Defendants’ motion to dismiss denied. Defendants’ alternative motion to strike granted.

Fischer v. Fort Belvoir Residential Communities LLC, Case No. 1:22-cv-286, Aug. 21, 2023. EDVA at Alexandria (Alston). VLW 023-3-497. 13 pp.