Andersen et al v. Lewis McChord Communities LLC et al, No. 3:2021cv05391 - Document 46 (W.D. Wash. 2022)

Court Description: ORDER Granting in Part and Denying in Part Defendants' 31 Partial Motion to Dismiss Plaintiff's Complaint: Plaintiffs' RLTA claim is DISMISSED WITH PREJUDICE. Plaintiffs' rent abatement claim is DISMISSED WITHOUT PREJUDICE. The Parties are instructed to file a join status report, including a proposed discovery schedule, within 30 days of this Order. Signed by U.S. District Judge David G. Estudillo. (SP)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 12 13 14 15 16 KYLEE ANDERSEN, et al., CASE NO. 3:21-cv-05391-DGE ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFFS’ COMPLAINT Plaintiffs, v. LEWIS MCCHORD COMMUNITIES LLC, a Delaware limited liability company; LINCOLN MILITARY HOUSING LEWIS MCCHORD PM LLC, a Delaware limited liability company, Defendants. 17 18 19 I. INTRODUCTION This matter comes before the Court on Defendants’ Partial Motion to Dismiss Plaintiffs’ 20 Complaint. (Dkt. No. 31.) The Court has considered the pleadings filed in support of and in 21 opposition to the motion and the remainder of the record and hereby GRANTS IN PART and 22 DENIES IN PART Defendants’ Partial Motion to Dismiss for the reasons discussed herein. 23 24 25 ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFFS’ COMPLAINT - 1 1 II. 2 BACKGROUND Plaintiffs are a group of individuals who formerly resided at properties owned and 3 operated by Defendants LMH Lewis-McChord, LLC and LMH Lewis-McChord PM, LLC 4 (collectively, “Defendants”) on Joint Base Lewis McChord (“JBLM”). (Dkt. No. 24 at 3–18.) 5 Plaintiffs allege that throughout their time as tenants at the properties, they experienced a range 6 of issues, including leaks, water damage, moisture intrusion, and other effects of dilapidation and 7 disrepair. (Id. at 20–31.) Plaintiffs allege that exposure to these varying degrees of disrepair 8 caused them to suffer a variety of negative health impacts, including upper respiratory infections, 9 skin rashes, headaches, and seizures. (Id.) Plaintiffs also allege the poor housing conditions 10 exacerbated pre-existing health conditions, such as asthma and issues related to pregnancy. (Id.) 11 All material events of this action took place on JBLM. (Dkt. Nos. 31 at 3; 35 at 5.) In 12 1917, the Washington State Legislature ceded territory in Pierce County to the Congress of the 13 United States that today encompasses the area that was named Camp Lewis, later being named 14 Fort Lewis. Concessions Co. v. Morris, 186 P. 655, 656–57 (Wash. 1919). In 1938, the 15 Governor of Washington signed legislation allowing transfer of 900 acres of land and buildings 16 to the federal government to be used as part of a large airbase, later named McChord Field.1 The 17 two bases merged into JBLM in 2010 as part of a larger initiative by the Department of Defense.2 18 Plaintiffs filed the present action in Pierce County Superior Court on May 6, 2021 and 19 Defendants removed the action to federal court. (Dkt. No. 8 at 4.) Plaintiffs filed their Amended 20 Complaint on June 21, 2021. (Dkt. No. 23.) Plaintiffs bring the following claims against 21 22 23 24 McChord AFB – Early History, THE MCCHORD AIR MUSEUM FOUNDATION, http://www.mcchordairmuseum.org/REV%20B%20OUR%20HISTORY%20%20MAF%20BAS E%201939-1950.htm (last visited March 15, 2022). 2 Joint Base Lewis-McChord, U.S. ARMY, https://home.army.mil/lewismcchord/index.php/about/history (last visited March 15, 2022). 1 25 ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFFS’ COMPLAINT - 2 1 Defendants: 1) trespass and nuisance, 2) breach of implied covenant of quiet enjoyment, 3) 2 constructive eviction, 4) breach of rental agreement, 5) breach of implied warranty of 3 habitability, 6) negligent misrepresentation, 7) rent abatement, 8) breach of the duty of care in 4 the Residential Landlord-Tenant Act (“RLTA”), and 9) negligent infliction of emotional distress. 5 (Dkt. No. 24 at 32–53.) 6 III. LEGAL STANDARD 7 A. Jurisdiction 8 Land acquired by the federal government with the consent of a state legislature “for the 9 Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings” becomes a 10 federal enclave. U.S. CONST. art. I, § 8, cl. 17. Courts have federal question jurisdiction over 11 civil actions arising on federal enclaves. Durham v. Lockheed Martin Corp., 445 F.3d 1247, 12 1250 (9th Cir. 2006). The Federal Enclave Doctrine also confers on federal courts subject matter 13 jurisdiction over state law claims that were available at the time the land of the federal enclave 14 was ceded to the federal government. See Allison v. Boeing Laser Tech. Servs., 689 F.3d 1234, 15 1235 (10th Cir. 2012). Therefore, the Court has federal question jurisdiction over the action.3 16 B. Failure to State a Claim 17 Federal Rule of Civil Procedure 12(b)(6) motions to dismiss may be based on either the 18 lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable 19 legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Material 20 allegations are taken as admitted and the complaint is construed in the plaintiff’s favor. Keniston 21 22 23 24 3 The parties do not appear to dispute that the Court has jurisdiction as all relevant events occurred on JBLM, a federal enclave. (Dkt. Nos. 31 at 3; 35 at 5.) However, it is noted here that Defendants touched upon the issue of jurisdiction in their Motion to Dismiss without further analysis. (See Dkt. No. 31 at 5–6) 25 ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFFS’ COMPLAINT - 3 1 v. Roberts, 717 F.2d 1295, 1300 (9th Cir. 1983). “While a complaint attacked by a Rule 12(b)(6) 2 motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide 3 the grounds of his entitlement to relief requires more than labels and conclusions, and a 4 formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 554–55 (2007) (internal citations omitted). “Factual allegations must be 6 enough to raise a right to relief above the speculative level, on the assumption that all the 7 allegations in the complaint are true (even if doubtful in fact).” Id. at 555. The complaint must 8 allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 547. 9 Defendants here move to dismiss Plaintiffs’ claims arguing that: 1) the Federal Enclave 10 Doctrine and the choice-of-law provision bar claims brought under state law, and 2) the 11 remaining claims are barred by the Independent Duty Doctrine recognized in Washington courts. 12 (Dkt. No. 31 at 10–12.) Plaintiffs argue that their claims can be brought under federal law and 13 that the Independent Duty Doctrine is inapplicable. (Dkt. No. 35 at 6–13.) 14 IV. DISCUSSION 15 A. Choice-of-Law: Federal Law Applies to Federal Enclaves 16 Although the choice-of-law issues in this action are unique, they do not appear to be 17 disputed by the parties. As all material events to the action took place on a federal enclave, 18 federal law applies. Allison, 689 F.3d at 1236 (citing Pac. Coast Dairy v. Dep’t of Ag. of 19 Cal., 318 U.S. 285, 294 (1943)). Furthermore, the parties both signed rental agreements that 20 included a choice-of-law provision that the “Agreement shall be governed exclusively by all 21 22 23 24 25 ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFFS’ COMPLAINT - 4 1 applicable federal laws”. (Dkt. No. 31 at 4.) Plaintiffs also appear to concede that federal law 2 applies.4 (Dkt. No. 35 at 1, 6, 7.) 3 As the state retains no sovereignty after it cedes land to the federal government, any state 4 laws in existence at the time the federal government acquired an enclave become federal law. 5 Mater v. Holley, 200 F.2d 123, 124 (5th Cir. 1952); see Willis v. Craig, 555 F.2d 724, 726 n.4 6 (9th Cir. 1977). This judicially created rule “assures that no area, however small, will be left 7 without laws regulating private rights.” Id. Laws subsequently enacted by the state are 8 inapplicable in the federal enclave unless they come within a reservation of jurisdiction or are 9 adopted by Congress. See Paul v. United States, 371 U.S. 245, 268 (1963). Therefore, in 10 applying federal law to the present action, the Court applies both traditional federal law and the 11 law of Washington State at the time of cession, 1917.5 12 B. Federal Law as Basis for Plaintiffs’ Claims 13 Defendants argue that the application of federal law bars several of Plaintiffs’ claims. 14 (Dkt. No. 31 at 7–10.) Plaintiffs allege that all their state law claims can be brought under 15 federal law through federal statutes or state laws that predate the cession of the federal enclave. 16 (Dkt. No. 35 at 1.) 17 1. 28 U.S.C. § 5001 Allows Claims for Personal Injury Based on State Law 18 19 Plaintiffs’ argument in the alternative, that the Court should invalidate the choice-of-law provision to the extent it bars any of Plaintiffs claims is unpersuasive. (Dkt. No. 35 at 7–8.) Plaintiffs incorrectly state that if the choice-of-law provision is invalidated, Washington law would apply. (Id. at 7.) As stated supra, the Federal Enclave Doctrine requires the Court to apply federal law. There is no basis to invalidate the choice-of-law provision as federal law applies regardless. 4 20 21 22 Defendants appear to concede this point in their reply. (Dkt. No. 36 at 7) (“Plaintiffs state law personal injury claims are limited to those claims that existed prior to the creation of the federal enclave.”). 5 23 24 25 ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFFS’ COMPLAINT - 5 1 As an exception to the Federal Enclave Doctrine, 28 U.S.C. § 5001 provides a civil action 2 for death or injury governed by the law of the State in which the federal enclave is located. The 3 current version of 28 U.S.C. § 5001 reads: 4 (a) Death.--In the case of the death of an individual by the neglect or wrongful act of another in a place subject to the exclusive jurisdiction of the United States within a State, a right of action shall exist as though the place were under the jurisdiction of the State in which the place is located. 5 6 (b) Personal injury.--In a civil action brought to recover on account of an injury sustained in a place described in subsection (a), the rights of the parties shall be governed by the law of the State in which the place is located. 7 8 The statute “envisions the application of the current substantive law of the surrounding 9 10 state in actions for death or personal injury occurring within a federal enclave.” Vasina v. 11 Grumman Corp., 644 F.2d 112, 118 (2d Cir. 1981) (emphasis added) (interpreting 16 U.S.C. § 12 4576, the predecessor to § 5001). Unlike claims brought under a state law pre-dating cession, 13 state law claims brought under § 5001 are interpreted using current state law. 14 Defendants argue Plaintiffs cannot bring their negligent infliction of emotional distress 15 claim because § 5001(b) only allows for claims stemming from physical injuries, not purely 16 emotional injuries. (Dkt. No. 31 at 14–15.) District courts in this circuit appear to be split as to whether the term “personal injury” in 17 18 § 5001(b), and its predecessor statute 16 U.S.C. § 457, includes purely emotional injuries. 19 Compare Shurow v. Gino Morena Enterprises, LLC, 2017 WL 1550162, at *3 (S.D. Cal. May 1, 20 2017) (citing Kelly v. Lockheed Martin Servs. Grp., 25 F. Supp. 2d 1, 7 (D.P.R. 1998)), with 21 22 23 24 6 Congress repealed 16 U.S.C. § 457 on December 19, 2014 and replaced it with 28 U.S.C. 28 U.S.C. § 5001. Although there are cosmetic differences between the two statutes, there are no substantive differences relevant to this case. 25 ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFFS’ COMPLAINT - 6 1 Kasperzyk v. Shetler Sec. Servs., Inc., 2014 WL 31434, at *12 (N.D. Cal. Jan. 3, 2014) 2 (recognizing “personal injury” to include purely emotional injuries). 3 In Shurow, the plaintiff brought an employment discrimination action arising on a 4 military base in California, alleging multiple claims, including intentional and negligent 5 infliction of emotional distress. 2017 WL 1550162, at *1 (S.D. Cal. May 1, 2017). Recognizing 6 that the Federal Enclave Doctrine applied, the court looked at whether the plaintiffs emotional 7 distress claims could be brought under § 5001. Looking at the term “personal injury,” the court 8 believed there were only two feasible interpretations: “physical injury” or “any injury.” Id. at *3. 9 Shurow, however, did not distinguish between emotional and economic injury under the label of 10 “any injury”. As such, Shurow concluded that “any injury” was overbroad and otherwise “co- 11 extensive” with Article III standing to sue. Id. To accept “any injury” as being within the 12 definition of personal injury “would swallow the entire Federal Enclave Doctrine.” Id. Thus, 13 Shurow agreed with the court in Kelly v. Lockheed Martin Servs. Grp., 25 F. Supp. 2d 1, 7 14 (D.P.R. 1998) that “§ 5001 creates an exception allowing recovery only for damages stemming 15 from a physical injury to one’s person.” Id. 16 In contrast, Kasperzyk did distinguish between emotional and economic injury. In that 17 case, a plaintiff in California brought various claims alleging employment discrimination on a 18 federal enclave. 2014 WL 31434, at *2–3 (N.D. Cal. Jan. 3, 2014). The court rejected the Kelly 19 courts definition of “personal injury” to include only physical injuries. Id. at *12–13. Kasperzyk 20 recognized that although personal injury at common law meant only physical injuries, it did not 21 mean that the statute “freezes into its scope a historic and static view of what can constitute 22 personal injury.” Id. at *12. Looking to state law and Black’s Law Dictionary, Kasperzyk found 23 that the term “personal injury” encompassed purely emotional injuries because purely emotional 24 25 ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFFS’ COMPLAINT - 7 1 injuries were still an injury to a person, even if there is no accompanying physical injury. Id. 2 Although Kasperzyk recognized that purely emotional injuries could be brought under the 3 statute, it noted that purely economic injuries could not. Id. at *13. Thus, the Federal Enclave 4 doctrine would continue to bar certain injuries even if emotional injuries were included within 5 the term “personal injury”. 6 As a result, the Court agrees with Kasperzyk that purely emotional injuries can be 7 brought under § 5001, and in doing so notes that the Federal Enclave doctrine is not subsumed 8 by such interpretation. Looking at the statute, the term “injury” is undefined. However, the 9 Court looks to the title of the section which is labeled “personal injury”. 28 U.S.C. § 5001(b); 10 see also Almendarez–Torres v. United States, 523 U.S. 224, 234 (1998) (“[T]he title of a statute 11 and the heading of a section are tools available for the resolution of a doubt about the meaning of 12 a statute.”) (internal quotation marks and citations omitted). 13 The dictionary definition of the term “personal injury” includes both bodily injury and 14 private injury, which includes mental suffering. See Black’s Law Dictionary (11th ed. 2019) 15 (“Personal injury [–] 1. In a negligence action, any harm caused to a person, such as a broken 16 bone, a cut, or a bruise; bodily injury. — Also termed bodily injury. 2. Any invasion of a 17 personal right, including mental suffering and false imprisonment. — Also termed private 18 injury.”). 19 In the Court’s view, the distinction is not between physical injury and “any injury” as the 20 Shurow court suggests, but whether “personal injury” encompasses only physical injuries, or 21 non-physical injuries to a person, including emotional injuries. Although no higher court has 22 delved into the term as written in § 5001, the Supreme Court in dicta analyzing another statute 23 recognized the term “personal injuries” commonly includes both physical and nonphysical 24 25 ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFFS’ COMPLAINT - 8 1 injuries. United States v. Burke, 504 U.S. 229, 237 n.6 (1992) (“the courts and the IRS long 2 since have recognized that § 104(a)(2)’s reference to “personal injuries” encompasses, in accord 3 with common judicial parlance and conceptions, . . . nonphysical injuries to the individual, such 4 as those affecting emotions, reputation, or character, as well.”) (emphasis added). In addition, if Congress intended “personal injuries” in § 5001 to mean only physical 5 6 injuries, it could have done so. In other contexts, Congress has rejected the use of the term 7 physical injury in place of personal injury, demonstrating that the two terms are not synonymous. 8 Id. (recognizing that Congress rejected an amendment to § 104(a)(2) limit it to cases involving 9 “physical injury or physical sickness” and instead adopting the language “personal injury or 10 physical sickness”). Therefore, the Court finds that “personal injury” in § 5001 includes both 11 physical and emotional injuries, and Plaintiffs can bring claims for purely emotional injuries 12 under the statute, including their negligent infliction of emotional distress claim.7 13 However, to the extent Plaintiffs are seeking to recover for economic injuries, they have 14 put forth no support for the proposition that a personal injury under § 5001 can be understood to 15 include economic injuries. Kasperzyk, 2014 WL 31434, at *13. 16 2. Claims Pre-dating Cession are Allowed 17 18 As the Federal Enclave Doctrine recognizes state law at the time of cession as federal law, all of Plaintiffs’ claims that were available to a plaintiff in Washington at the time of cession 19 20 21 22 23 24 Plaintiffs also point to the Servicemembers Civil Relief Act (“SCRA”) in support of its claim for negligent infliction of emotional distress. (Dkt. No. 35 at 9.) As Plaintiffs have not alleged a SCRA claim, nor cited to any authority suggesting it can be used in this manner, the statute is not applicable to his claims. As the claim can be brought under § 5001, the argument is moot. 7 25 ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFFS’ COMPLAINT - 9 1 are available to Plaintiffs under federal law. In this case, JBLM was ceded to the federal 2 government in 1917.8 Therefore, any causes of action available at that time are now federal law. 3 3. 10 U.S.C. §2894(g) is Not Applicable Plaintiffs cite to 10 U.S.C. §2894(g) titled “Landlord-Tenant Dispute Resolution Process 4 5 and Treatment of Certain Payments During Process.” (Dkt. No. 35 at 9–11.) However, this 6 statute was passed in December 2019, after the rental agreements were signed and after the 7 issues before the Court took place. Plaintiffs fail to explain how the law applies retroactively or 8 to cite any authority suggesting it can be used in this manner. The Court finds the statute 9 inapplicable in the present context. 10 C. Washington’s Independent Duty Doctrine Does Not Apply 11 Defendants argue that the Washington State Independent Duty Doctrine applies to 12 prevent Plaintiffs from bringing tort claims that do not arise independently of the terms of the 13 contract. (Dkt. No. 31 at 10–12.) 14 In Washington courts, the Independent Duty Doctrine prevents Plaintiffs in a contractual 15 relationship with the defendant from bringing claims for injuries from a breach of a tort law duty 16 of care that do not arise independently of the contract. Eastwood v. Horse Harbor, 241 P.3d 17 1256, 1266 (Wash. 2010). The Supreme Court of Washington has applied this doctrine 18 sparingly. Elcon Const., Inc. v. E. Washington Univ., 273 P.3d 965, 969 (Wash. 2012) 19 20 21 22 23 24 8 The Court recognizes that the part of JBLM that was formerly McChord Field was ceded to the Federal Government in 1938, 21 years after Fort Lewis. For purposes of this case, any actions first recognized between 1917 and 1938 raise the question of whether laws promulgated by Washington during that time apply only to the portion of JBLM that was previously McChord Field. As the only cause of action that arose between the period, negligent misrepresentation, can be brought under § 5001, it is not necessary for the Court to discuss the issue in this order. However, both parties should be prepared to address the issue should it present itself in the future. 25 ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFFS’ COMPLAINT - 10 1 (quoting Eastwood, 241 P.3d at 1270–76 (Chambers, J., concurring)) (“[I]n Eastwood we 2 directed lower courts not to apply the [independent duty] doctrine to [bar] tort remedies ‘unless 3 and until this court has, based upon considerations of common sense, justice, policy and 4 precedent, decided otherwise.’”). 5 Defendants fail to explain how the Court, applying the law of the federal enclave, would 6 allow for the application of a Washington State doctrine not in existence at the time of cession of 7 the federal enclave. Nor have Plaintiffs explained in their briefing how a comparable doctrine in 8 federal law applies to prevent Plaintiffs from bringing their tort claims. Therefore, the Court will 9 not grant dismissal of any of Plaintiffs’ claims based on the Independent Duty Doctrine. 10 11 D. Review of Plaintiffs’ Claims 1. Count I: Trespass and Nuisance 12 Defendants appear to concede that the claims of trespass and nuisance existed in 13 Washington prior to the creation of the federal enclave (Dkt. No. 36 at 7) and the Court agrees. 14 See Sargent v. City of Tacoma, 38 P. 1048, 1049 (Wash. 1894). Furthermore, to the extent 15 Plaintiffs seek to recover damages due to their personal injuries, plaintiffs in Washington can 16 recover for harms suffered because of injuries caused by trespass, Bradley v. Am. Smelting & 17 Ref. Co., 709 P.2d 782, 785 (1985), and nuisance, Washington Revised Code § 7.48.120. 18 Therefore, Plaintiffs can bring a claim under § 5001(b). Defendants’ Motion to Dismiss is 19 DENIED as to Plaintiffs’ trespass and nuisance claim. 20 21 2. Count II: Breach of Implied Covenant of Quiet Enjoyment Defendants appear not to dispute that claims for breach of the implied covenant of quiet 22 enjoyment existed in Washington prior to the creation of the federal enclave (Dkt. No. 36 at 7) 23 and the Court agrees. See Morgan v. Henderson, 8 P. 491, 491 (Wash. 1885). Therefore, 24 25 ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFFS’ COMPLAINT - 11 1 Defendants’ Motion to Dismiss is DENIED as to Plaintiffs’ breach of implied covenant of quiet 2 enjoyment claim. 3 3. Count III: Constructive Eviction 4 Defendants appear to concede that the claims of constructive eviction existed in 5 Washington prior to the creation of the federal enclave (Dkt. No. 36 at 7) and the Court agrees. 6 Ralph v. Lomer, 28 P. 760, 763 (Wash. 1891). Therefore, Defendants’ Motion to Dismiss is 7 DENIED as to Plaintiffs’ constructive eviction claim. 8 9 4. Count IV: Breach of Rental Agreement Defendants do not dispute that the claim of breach of contract existed in Washington 10 prior to the creation of the federal enclave (Dkt. No. 36 at 7) and the Court agrees. Ransberry v. 11 N. Am. Transp. & Trading Co., 61 P. 154 (Wash. 1900). Therefore, Defendants’ Motion to 12 Dismiss is DENIED as to Plaintiffs’ breach of rental agreement constructive eviction claim. 13 14 5. Count V: Breach of Implied Warranty of Habitability Defendants correctly point out that Washington first recognized the common law theory 15 of implied warranty of habitability in 1973. (Dkt. No. 36 at 7–8.) However, Washington has 16 adopted the Restatement (Second) of Property: Landlord and Tenant § 17.6 (Am. L. Inst. 1977) 17 which provides a remedy for physical harm suffered because of the breach of implied warranty 18 of habitability. Gerlach v. Cove Apartments, LLC, 471 P.3d 181, 193 (Wash. 2020) (“we 19 adopt Restatement § 17.6 to the extent that we recognize a landlord’s liability in tort to tenants 20 and their guests for breach of the implied warranty of habitability.”). Plaintiffs’ Amended 21 Complaint alleges that Defendants breach “caused serious personal injuries and damages to 22 Plaintiffs.” (Dkt. No. 23 at 43.) Plaintiffs have thus alleged an injury under § 5001(b) and 23 24 25 ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFFS’ COMPLAINT - 12 1 therefore can bring the claim. Therefore, Defendants’ Motion to Dismiss is DENIED as to 2 Plaintiffs’ breach of the implied warranty of habitability claim. 3 4 6. Count VI: Negligent Misrepresentation Defendants correctly point out that Washington first recognized the common law theory 5 of negligent misrepresentation in 1934. (Dkt. No. 36 at 7–8.) However, a plaintiff in 6 Washington may recover for emotional distress damages under a claim of negligent 7 misrepresentation. Bloor v. Fritz, 180 P.3d 805, 820 (Wash. App. 2008) (upholding trial court’s 8 decision to award emotional distress damages for a claim of negligent misrepresentation related 9 to a real estate transaction). Plaintiffs therefore can bring a claim of negligent misrepresentation 10 under § 5001(b). Defendants’ Motion to Dismiss is DENIED as to Plaintiffs’ negligent 11 misrepresentation claim. 12 13 7. Count VII: Rent Abatement Plaintiffs’ have offered no support for how the remedy of rent abatement is available 14 under federal law predating cession. As § 5001 does not provide a remedy for Plaintiffs to 15 recover economic injuries and they have not provided support for any alternative, Defendants’ 16 Motion to Dismiss is GRANTED as to Plaintiffs’ rent abatement claim and the claim is 17 DISMISSED WITHOUT PREJUDICE. 18 8. Count VIII: RLTA 19 Defendants correctly point out that the RLTA went into effect in 1973. (Dkt. No. 36 at 20 7–8.) The Washington Supreme Court has also explicitly held that a tenant cannot recover for 21 personal injuries under the RLTA, Gerlach v. Cove Apartments, LLC, 471 P.3d 181, 191 (Wash. 22 2020), foreclosing the application of § 5001. Therefore, Defendants’ Motion to Dismiss is 23 GRANTED as to Plaintiffs’ RLTA claim and the claim is DISMISSED WITH PREJUDICE. 24 25 ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFFS’ COMPLAINT - 13 1 9. Count IX: Negligent Infliction of Emotional Distress 2 Defendants correctly point out that Washington first recognized the common law theory 3 of negligent infliction of emotional distress in 1976. (Dkt. No. 36 at 8.) However, a plaintiff in 4 Washington can seek recovery for emotional damages under the tort and therefore Plaintiffs can 5 bring the claim of negligent infliction of emotional distress under § 5001. See supra part III.B.1. 6 Therefore, Defendants’ Motion to Dismiss is DENIED as to Plaintiffs’ negligent infliction of 7 emotional distress claim. 8 9 V. CONCLUSION Accordingly, and having considered Defendants’ motion, the briefing of the parties, and 10 the remainder of the record, the Court finds and ORDERS that Defendants’ Partial Motion to 11 Dismiss Plaintiffs’ Complaint is GRANTED IN PART and DENIED IN PART. 12 1. Plaintiffs’ RLTA claim is DISMISSED WITH PREJUDICE. 13 2. Plaintiffs’ rent abatement claim is DISMISSED WITHOUT PREJUDICE. 14 3. The Parties are instructed to file a join status report, including a proposed discovery 15 16 schedule, within 30 days of this Order. Dated this 24th day of March 2022. 18 A 19 David G. Estudillo United States District Judge 17 20 21 22 23 24 25 ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFFS’ COMPLAINT - 14

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