Talley et al v. Lincoln Property Company et al, No. 5:2018cv00550 - Document 83 (E.D.N.C. 2019)
Court Description: ORDER granting 47 Motion to Dismiss for Failure to State a Claim; denying as moot 49 Motion to Sever; granting 52 Motion to Dismiss for Failure to State a Claim; granting 54 Motion to Dismiss for failure to state a claim; granting 65 Motion for Judgment on the Pleadings. Signed by District Judge James C. Dever III on 11/14/2019. (Sellers, N.)
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Talley et al v. Lincoln Property Company et al Doc. 83 IN TIIE UNITED STATES DISTRICT COURT FOR TIIE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DMSION No. 5:18-CV-550-D TRACIE TALLEY, f/k/a TRACIE JONES, ) ) et al., ) Plaintiffs, ) ) ) v. ) ) LINCOLN PROPERTY COMPANY, ) et al., ) Defendants. ) ORDER On February 7, 2019, Tracie Talley, f/k/a Tracie Jones {"Talley''), Dem.orris Walters ("Walters"), Shante Pruitt ("Pruitt"), Megan Luckey (''Luckey''), and Latoya Glover ("Glover"; collectively, ''plaintiffs"), on behalf of them.selves and others simnarly ·situated, filed a second amended complaint against Lincoln Property Company ("Lincoln"), Lincoln· Property Company Manager, Inc. ("LPCM''), Greystone WW Company, LLC, d/b/a Greystone at Widewaters ("Greystone"), Sterling Forest Associates, LLC, d/b/a Vert@Six Forks ("Vert''), and Inman Park Investment Group, Inc., d/b/a Inman Park Apartments ("Inman Park''; collectively, "defendants"). Plaintiffs allege that defendants violated North Carolina's Residential Rerital Agreements Act ("RRAA"), N.C. Gen. Stat § 42-38 et~ the North Carolina Debt Collection Act ("NCDCA"), N.C. Gen. Stat. § 75-50 et~ and the North Carolina Unfair and Deceptive Trade.Practices Act (''UDTPA"), N.C. Gen. Stat§ 75-1 et~ [D.E. 42]. On March 14, 2019, all defendants bu~ Greystone moved to dismiss plaintiffs' second amended complaint [D.E. 47, 52, 54] and filed memoranda in support [D.E. 51, 53, 55]. See Fed. R. Civ. P. 12(b)(2), (6). On May 13, 2019,plaintiffsrespondedinopposition [D.E. 62, 63, 64]. On Dockets.Justia.com >;·. June 17and18, 2019, defendants replied [D.E. 73, 74,.75]. OnMarch.14, 2019, Gieystonemoved to sever [D.E. 49] and filed a memorandum in support [D.E. 50]. On May 13, 2019, plaintiffs responded in opposition [D.E. 61]. On June 11, 2019, Greystone·replied [D.E. 72]. On May 16, 2019, Greystone moved for judgment on the pleadings [D.E. 65] ,and filed memoranda in support [D.E. 66, 76]. On July 8, 2019, plaintiffs responded in opposition [D.E. 77]. As explained below, . . . the court grants Inman Park and Vert's motions to dismiss [D.E. 47, 52], denies Lincoln and LPCM's motions to dismiss for lack of personal jurisdiction [D.E. 54], grants Greystone's motion for judgment on the pleadings [D.E. 65], and denies as moot Grey~ne's motion to sever: [D.E. 49]. " ' I. . ... .•. Plaintiffs are former tenants. See 2d Am. Compl. [D.E.. 42] . W7-13. Talley leased an apartment from Greystone from April 29, 2014, until April 30, 2018. See id. ~ 108. Walters leased an apartment from Greystone from 2013 until August 31, 2018.' See id.~ 130. Pruitt leased an apartment from Inman Park from November 1, 2017, until October 31, 2018. See id.~ 152. Luckey ' . leased an apartment from Vert from December 18, 2017, until September 17, 2018. See id.~ 174. Glover leased an apartment from Greystone from September 1, 2016, until November 30, 2016. See id. ~ 196-97. Plaintiffs allege that Greystone, Inman Park, anci Vert contract with Lincoln and LPCM to manage their apartment complexes. See id. W25, 30, 35. ·. Plairitiffs also allege that \.. Greystone, Inman Park, and Vert are vicariously liable for Linco.ln and LPCM' s acti.OJlS and that Lincoln and LPCM defendants enforced the same policies at all three apartment complexes against plaintiffs and members of plaintiffs' purported class. See id. W44-48. Plaintiffs' rent was due on the first day of each month ''with no gi:ace pcmod." E.g., Pl.' s Ex. 1[D.E.42-1] 2~ 6; Pl.'sEx. 5 [D.E. 42-5] 2 ~6; Pl.'sEx. 6 [D.E. 42-6] 2~6; Pl.'sEx. 26 [D.E. 4226] 2 ~ 6. If plaintiffs did not pay rent on time, plaintiffs' leases:authorized defendants to file for 2 summary ejectment in state court. See,~ Pl.'s Ex. 1 [D.E. 42-1] 5 ~ 31; Pl.'s Ex. 5 [D.E. 42-5] 5 ~ 31; Pl.'s Ex. 6 [D.E. 42-6] 5 ~ 31; Pl.'s Ex. 26 [D.E. 42-26] 5 ~ 31. If defendants pursued summary ejectment, plaintiffs agreed to pay any "attorneys' fees and all litigation costs to the extent permitted by law." E.g., Pl.'s Ex. 1 [D.E. 42-1] 5 ~ 31; Pl.'s Ex. 5 [D.E. 42-5]5 ~ 31; Pl.'s Ex. 6 [D.E. 42-6] 5 ~ 31; Pl.'s Ex. 26 [D.E. 42-26] 5 ~ 31. In addition; plaintiffs' leases authorized defendants to charge one ofthree fees depending on how far legal action against a defaulting tenant progressed: a complaint-filing fee, a court-appearance fee, or a seci>nd trial fee. See, e.g., Pl. 's Ex. 1[D.E.42-1] 5 ~31; Pl.'sEx. 5 [D.E.42-5] 5 ~31; Pl.'sEx. 6 [D.E.42-6] 5 ~31; Pl.'sEx. 26 [D.E. 42-26] 5 ~ 31; cf. N.C. Gen. Stat.§ 42-46(e}-{g). Plaintiffs repeatedly did not pay rent on time and thus were in default. See id Am. Compl. . . ft 111, 133, 155, 177, 199. Because plaintiffs defaulted on their leases, Lincoln and LPCM sent plaintiffs letters (''the Initial Collection Letters") notifying plaintiffs that they woUld owe "additional legal charges" upon initiation of summary ejectment proceedings. Id;:~ 68; see id. ft 111, 133, 155, 177, 199; see, e.g., Pl.'s Ex. 7 [D.E. 42-7]; Pl.'s Ex. 10 [D.E. 42-10]~ ·Defendants began summary ejectment proceedings if plaintiffs did not pay rent by approximately the 10th day of each month. See, e.g., id. ft 115, 137. Thus, plaintiffs allege that the Initial ·collection Letters threatened to assess "eviction fees" against plaintiffs if they did not cure their default before summary ejectment proceen;ngs began. See id.~ 71. These "eviction fees" comprised the litigation costs that defendants incurred . . for initiating a summary ejectment action: $96.00 for filing a summary ejec1ment complaint and $30 for a sheriff to effect service of process. See id. ft 119--20, 141-42, 163-64, 18~6, 207~8. 1 The "eviction 1 Although plaintiffs allege that these litigation costs were· ''eviction fees," whether these "eviction fees" constituted a ''fee" under the RRAA is a legal conclusion. Thus, the court need not 3 fees" were distinct from the complaint-filing fee, court-appeara:iicefee, or second trial fee that defendants could charge under the lease. See, ~ id. ft 110, 132. After posting "eviction fees" to a tenant's account, defendants notified tenants that they owed "~Viction fees'.' (''the Subsequent Collection Letter''). Id. ~94; see, e.g., Pl.'sEx. 11 [D.E.42-11]; Pl.'s Ex. 18 [D.E. 42-18]; Pl.'sEx. 19 [D.E. 42-19]; Pl.'s Ex. 20 [D.E. 42-20]; Pl.'s Ex. 22 [D.E. 42-22]. Once defendants assessed "eviction fees," plaintiffs allege that defendants would not remove them from an account even if defendants did not pursue or dismissed summary ejectment proceedings. See id. ~ 93. Plaintiffs allege that Greystone, Inman Park, and Vert all approved the SubsCCluent Collection Letters that Lincoln and LPCM sent to plaintiffs and similarly-sittiated tenant$.· See id. ~ 96. Plaintiffs all paid the "eviction fees" and defendants voluntarily-dismissed their summary . . ejectment complaints. See id. ft 126-27, 148-49, 170--71, 192-93, 214-15. Plaintiffs claim that, at that time, no attorney had been hired, no attorney had appeared in court, no hearing had been held, and no summaryejectmentcomplainthad been filed. See,~ id.. ft 120--24, 142-46.. Defendants also only sought possession ofplaintiffs' apartments, not money damages. See,~ id. ft 125, 147. Thus, when plaintiffs paid the "eviction fees," plaintiffs allege that no court had awarded the "eviction fees" to defendants. See, e.g., id. ft 128, 150. Plaintiffs also illlegethattheydidnotagree to a settlement with defendants. See,~ id. ft 129, 151. . n. -- : Lincoln and LPCM, both nonresident business entities, challenge persona} jurisdiction. The court does not have personal jurisdiction over a nonresident defendant unless personal jurisdiction comports with North Carolina's long-arm statute and the Fourteenth Amendment's Due Process takeastruethatthese~ountsconstituted ''fees"undertheRRAA~. SeeAshcroftv. Iqbal, 556U.S. 662, 677-80 (2009); Bell Atl. Com. v. Twombly, 550 U.S. 544, 554- 63 (2007). 4 .. '·.··: ·,_ .. Clause. See,~ Mitrano v. Hawes, 377 F.3d 402, 406 (4th Cir. 2004). North Carolina's long-arm statute extends personal jurisdiction over nonresident defendants to the extent permitted by the Fourteenth.Amendment's Due Process Clause. See Christian Set Bd. ofDirs. v. Nol!m, 259 F.3d 209, 215 (4th Cir. 2001). Thus, the statutory and constitutional inquiries merge. See id. ·. ''- ' Due process requires adefendantto have "certain minimu.nicontacts with the forum such that fair play and substantial justice." the maintenance of the suit does not offend traditional notions of-·•.--.·:.Helicopteros Nacionales de Colombia. S.A. v. Hall, 466 U.S. 408, 414 (1984) (alteration and / quotation omitted). The extent of the contacts needed for jurisdiction turns on whether the claims asserted against a defendant relate to or arise out of the defendant's contacts With the forum state. See ALS Scan. Inc. v. Dig. Serv. Consultants. Inc., 293 F.3d 707, 712 (4th Cir. 2002). If the defendant's contacts with the state are the basis for the suit, specific jurisdiction may exist. Id. In determining specific jurisdiction, the court considers "(l) the extent' to which 'the defendant - . . . purposefully availed itself of the privilege of conducting activitjes .in the State; (2) whether the plaintiffs' claims arise out of those activities directed at the State; and (3) whether the exercise of . ~· .. :., personal jurisdiction would be constitutionally reasonable." Id. (alteration and quotations omitted). Thus, the "constitutional touchstone" of specific personal jurisdiction ''remains whether the defendant purposefully established minimum contacts in the forum state." Burger King Cor;p. v. Rudzewicz, 471 U.S. 462, 474 (1985) (quotation omitted). Plaintiffs do not argue that Lincoln and '. LPCM are subject to general personal jurisdiction. See [D.E. 63] 5. '' When the court rules on a motion to dismiss for lack of "personal jurisdiction without "conducting an evidentiary hearing, a plaintiff need only make a i>rima facie showing of personal jurisdiction. See Sneha Media & Entm't. LLC v. Associated B~orui. Co. P Ltd., 911F.3d192, 196--97 (4th.Cir. 2018); Mylan.Labs.. Inc. v. Akzo. N.V., 2 F.3d 56~_60 (4th Ci.I. 1993). A plaintiff 5 need not establish personal jurisdiction by a preponderance ofthe evidence at this stage. See Sneha Media. 911 F.3d at 196--97. In addition, the court construes all relevant jurisdictional allegations in the light most favorable to the plaintiff and draws the most favorable.inferences for the existence ofjurisdiction. Mylan Labs.. Inc., 2 F.3d at 60. The court has not held an ~videntiary hearing. Thus, plaintiffs need only make a priina facie showing of personal juris~ction OVCI' Lincoln and LPCM to survive the motion to dismiss. Lincoln and LPCM have produced evidence that they do not own properties in North Carolina, maintain offices or agents in North Carolina, conduct any business in North Carolina, or ... manage any properties in North Carolina. See Austin Deel. [D.E. 55".'1] mf 5(a}-<g). Thus, the court ". '. ~ ' need not take plaintiffs' allegations to the contrary as true. See Wolfv. Richmond Cty. Hosp. Auth., . t - "~ ·.. 745F.2d904, 908 (4thCir.1984); Clarkv.Remark,993F.2d228,J993WL134616,at*2(4thCir. ~--~ ·. _. ,-- -. - - -. ~--~. 1993) (per curiam) (unpublished table decision); Bassett v. Strickl~d~s Auto & Truck Rq>airs. Inc., -->.::.~. No. 1:17CV590, 2018 WL 3542868, at *3 (M.D.N.C. July 23, 201.8) (unpubli~ed); Venderbush v. Veritas Techs. LLC, No. 3:18-cv-272-FDW-DSC, 2018 WL 3428154, at *1 n.1 (W.D.N.C. July 16, 2018) (unpublished). In response, plaintiffs cite evidence that Lincoln and LPCM.maintained :r;egistered agents for service of process in North Carolina during the 2018 fiscal year. .. ~eeEx.1[D.l~.63-1]; Ex. 2 '- ~.. . [D.E. \· 63-2]. This action alone does not create personal jurisdiction. See;_e.g., Ratliffv. Cooper Labs.. Inc.,444F.2d 745, 748 (4th_Cir.1971); Liverettv. Dyncorplnt'l.LLC,No. . .. - 3:17-cv-282-JAG,2017 ... ' ,, -~ ·. ' WL 9481048, at *2 (E.D. Va. July 18, 2017) (unpublished). Nonetheless, plaintiffs also cite a website operated by "Lincoln Property Company'' that suggests that "Lincoln Property Company'' manages fifteen apartment complexes in North Carolina, including the three apartment complexes in this action. See [D.E. 63] 3, 8. The contacts ofa subsidiary corporation generally are not imputed 6 · •. ·:·•. to a parent corporation. See Saudi v. Northrop Grumlnan.Corp., 4~7F.ld271,-l76 (4th.Cir. 2005); Mylan Labs. Inc., 2 F.3d at 60-61; Higgs v. Brian Ctr. Health & Retirement/Windsor. Inc., 367 F. Supp. 3d439, 449 (E.D.N.C. 2019). At this stage, however, the courtmustdrawthemostfavorable inferences for the existence ofpersonaljurisdiction. See Mylan Labs.• Inc., 2 F-.3d at 60. Thus, the court infers that "Lincoln Property Company'' is Lincoln. Moreover, plaintiffs need only make a prima facie showing that personal jurisdiction exists. See Sneha Media, 911 F.3d at 196--97. Accordingly, the court concludes that plaintiffs have made a prima. facie showing that specific personal jurisdiction exists over Lincoln and LPCM and denies the motion to dismiss_ for lack of personal jurisdiction. m. A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Iqbal, 556 U.S. at 677-80; Twombly, SSO U.S. at 554- 63; Coleman v. Md. Court of Appeals. 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Nemet Chevrolet. Ltd. v. . . . . ·- Consumeraffairs.com. Inc., 591 F.3d 250, 255 (4th Cir. 2009); 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 reliefthat is pla~~~~e o~its f~." Iqbal, 556 U.S. at 678 (quotati~n omitted); see Twombly, 550 U.S. at 570; Gtariatario, sit 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, 551 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). A court need not accept as true a complaint's legal conclusions, "unwarranted infer~ces, unreasonable conclusions, .or arguments." Giarratano, 521 F.3d at 302 (quotation omitted)~ see Iqbal, 556 U.S. at 67&-79. :.-.:···.,,. 7 Rather, a plaintiff's allegations must ''nudge[] [the] 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., 637F.3d435,448 (4th Cir. 2011); see Fed. R. Civ. P. lO(c); Goinesv. ValleyCinty. Servs. Bd., 822 F.3d 159, l65-66(4thCir. 2016); Thompsonv. Greene,427F.3d263,268 (4thCir. 2005). A court also may 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'' without convcmmg the motion into one for ', . '~. .. . ' summary judgment. Goines, 822 F.3d at 166. Additionally, a court may take judicial notice of .·.·. public records when evaluating a motion to dismiss forfailure to;~te claim. See, ~ Fed. R. a . . ~ . ... ( ~ Evid. 201; Tell~s. Inc. v. Mak:or Issues & Rights. Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). . . Defendants' motions require the court to consider the plaintiffs' state law claims, and North . Carolina law applies. Accordingly, this courtmustpredicthowthe Supreme CourtofNorth Carolina would rule on any disputed state-law issue. See Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt ... Beverage Co. of S.C., 433 F.3d 365, 369 (4th Cir. 2005). In doing so, the court must look first to .: .. ·-·· opinions of the Supreme Court of North Carolina. See id.; Stahle;v.CTS Cor;p., 817 F.3d 96, 100 ·, (4th Cir. 2016). If there are no governing opinions from that~~ this _court may consider the opinions ofthe North Carolina Court ofAppeals, treatises, and ''the practices of other states." Twin City Fire Ins. Co., 433 F.3d at 369 (quotation omitted).2 In predicting how the highest court of a state would address an issue, this court must ''follow the decision of an intermediate state appellate 2 North Carolina does not have a mechanism to certify questions of state law to its Supreme Court. See Town of Nags Head v. Toloczko, 728 F.3d 391, 397-:-98::(4th Cir. 2013). 8 court unless there [are] persuasive data that the highest court wouid decide differently." Toloczko, 728 F.3d at 398 (quotation omitted); Hicks v. Feiock, 485 U.S. 624, 630 & n.3 (1988). Moreover, in predicting how the highest court of a state would address an issue; this court "should not create or expand a [s]tate's public policy." Time Warner Entm.'t-Advance/Newhouse P'ship v. CarteretCraven Elec. Membership Coip., 506 F.3d 304, 314 (4th Cir. 2007) (alteration and quotation omitted); Day & Zimmerman. Inc. v. Challoner, 423 U.S. 3, 4 (1.975) (per curiam); see Wade v. Danek Med.. Inc., 182 F.3d 281, 286 (4th Cir. 1999). A. Plaintiffs allege that defendants violated the RRAA by charging plaintiffs court costs and other out-of-pocket expenses as "eviction fees" when plaintiffs did not pay rent on time. See 2dAm. Compl. [D.E. 42] ft 230--38; cf. N.C. .· Gen. Stat. § 42-46(h)(3). On June 14, 2018, the North Carolina General Assembly ("General Assembly") amended section42-46(h)(3) ofthe RRAA. See . ~ ·~· An Act to Allow Landlords to Recover Out-of-Pocket Expenses in Summary Ejectinent Cases, 2018 N.C. Sess. Laws 2018-50 (2018). On June 25, 2018, the amendment became effective. See id. The parties dispute whether the RRAA, before and after the 2018 ameJidmefi.t, forbade landlords from charging tenants court costs and other actual out-of-pocket expenSes arising from tenants' defaults. Compare [D.E. 51] 7-20 with [D.E. 64] 4-17. •. "In construing a state law, [federal courts] look to the rules of construction applied by the enacting state's highest court." Carolina Trucks & Equip.. Inc. v. Volvo Trucks ofN. Am.. Inc., 492 F.3d 484, 489 (4th Cir. 2007); see In re DNA Ex Post Facto Issues, 561F.34294, 300 (4th Cir. .. . ·~ ~ ' 2009). Accordingly, this court looks to the rules of statutory interpr~tion thatthe Supreme Court of North Carolina applies. Under North Carolina law, "[t]he cardinal principle of stanrtocy construction is to discern the 9 . <> -·- intentofthelegislature." Statev. Jones, 359N.C. 832, 835, 616 S.E.2d496, 49~ (2005); see Friends . . of Joe Sam Queen v. Ralph Hise for N.C. Senate, 223 N.C. App.-,395, 402, 735 S.E.2d 229, 234 (2012). Courts initially consider a statute's text to discern legislative intent. See Shaw v. U.S. Airways.Inc., 362N.C. 457,460, 665 S.E.2d449,451 (2008); Statev.Anthony,351N.C.611, 614, 528 S.E.2d 321, 322 (2000). North Carolina courts ''first look to the plain meailing of the statute." Frye Reg'l Med. Ctr.• Inc. v. Hunt. 350 N.C. 39, 45, 510 S.E.2d 159, 163 ·(~999). "Where the language of a statute is clear, the courts must give the statute its p~~ meaning ...." Id. .. . "In construing a statute with reference to an amendment it is·presumedthat the legislature intended either . . . to change the substance of the original act, or ; . . to clarify [its meaning]." Childers v. Parker's. Inc., 274 N.C. 256, 260, 162 S.E.2d 481, 483 fr?68)~see ~d v. Lake Phelps Volunteer FireUe.p't Inc., 351 N.C. 318, 323, 523 S.E.2d 672, 676 (2000). A clarifying amendment does not alter the original meaning of the statute and, thus, applies retroactively. See Ray v. N.C. ·. ~ De.p't ofTransp., 366 N.C. 1, 9, 727 S.E.2d 675, 681 (2012),; Wilson v. N.C. De.p't of Commerce, 239 N.C. App. 456, 461, 768 S.E.2d 360, 364 (2015); Thornton v~ City of Raleigh, 230 N.C. App. 600, 753 S.E.2d 400, 2013 WL 6096919, at *2 (2013) (unpublished table decision). By contrast, an .,· .'··· altering amendment modifies a statute's substantive meaning and ocly applie~ J,rospectively. Cf. Ray, 366 N.C. at 9, 727 S.E.2d at 681. :--i ' Whether an amendment is altering or clarifying is a questi~D. ~flaw for.the court. See id. at 8-9, 727 S.E.2dat681; In re Ernst& Young. LLP, 363 N.C. 612, 616, 684S.E.2d151, 154 (2009). . . The Supreme Court ofNorth Carolina presumes that the legislature intended to change the law when it amends a statute. See State ex rel. Utils. Comm'n v. Pub. Serv. Co. ofN.C.. Inc., 307 N.C. 474, 480, 299 S.E.2d 425, 429 (1983); Childers, 274 N.C. at 260, 162 S.E.2d at 483-84; State v. Moore, 240 N.C. App. 465, 477, 770 S.E.2d 131, 140 (2015). Nevertheless, if the amendment serves to 10 ·. ·.· .· address an ambiguity or improve the language of a statute, a court may interpret th~ amendment as merely clarifying existing law. See Ridge Cmty. Invs .. Inc. v. Beny, 293 N.C. 688, 695, 239 S.E.2d 566, 570 (1977); Childers, 274 N.C. at 260, 162 S.E.2d at 483-84. A court must undertake .a "careful comparison of the origin81 and. am,ended Statutes" to "determine whether [an] amendment clarifies [a] prior law or alter~ it~~' Ferrell~. De.p't ofTransp., 334 N.C. 650, 659, 435 S.E.2d 309, 315 (1993); see :BAy, 366 N.C~ at ~O, 727 S.E.2d at 682. Courts can use amendments to interpret a statute by analyzing ''the natul~ furetences arising out of the legislative history as it continues to evolve." Bmgess v. Yom House ofRaleigh. Inc., 326 N.C. 205, 216, 388 S.E.2d 134, 141 (1990). If a statute does not expressly address a particular point, and a legislature enacts an amendment to address that point, the amendment is more likely to be clarifying than altering. See Ray, 366 N.C. at 10, 727 S.E.2d at 682; Ferrell, 334 N~C. at 659, 435 S.E.2d at ·. . 315; Jeffries v. Cty. of Hamett, 817 S.E.2d 36, 48 (N.C. Ct. App~ 20~8); see al~o Bcyant v. United .,., States, 768F.3d 1378, 1385 (11th Cir. 2014)(applyingNorthCarolinaJaw). Otitheotherhand, "an law." Childers, 274 N.C. amendment to an unambiguous statute indicates the intent to change.the . '. . at 260, 162 S.E.2d at 484; see Taylor v. Crisp, 286 N.C. 488, 497;212 S.E.2d 3.81, 386-87 (1975); Bcyant, 768 F.3d at 1385. Before the General Assembly amended section 42-46 in 2018, the RRAA did not allow a landlord to ''put in a lease or claim any fee for filing a compl~t for summary ejectment and/or money owed other than the ones expressly authorized by subsectio~ (e) through (g) ofthis section, and a reasonable attorney's fee as allowed by law." N.C. Gen. Stat. §"_42-46(h)(3) (2016). Sections . . 42-46(e), (f), and (g) authorize a landlord to charge a tenant a c(,mplaint-:filing fee, a courtappearance fee, or a second trial fee depending on how far legal ac~on ag~the tenant progresses. See id. § 42-46(e}-{g). The 2018 amendment to section 42-46(h)(3) explicitly authorizes landlords 11 to charge defaulting tenants "out-of-pocket expenses." See id. § 42-46(h)(3), (i) (2018). Specifically, the RRAA, as amended, permits landlords to charge defaulting tenants "[t]iling fees charged by the court," "[c]osts for service of process pursUallt tc:>-" North. Carolina law, and "[r]easonable attorneys' fees actually incurred.'' Id.§ 42-46(i)(1H3). proVide e:icpress guidance on Before the amendment, section 42-46(h)(3)'s text did nof . . . ~ ·.. ' whether a ''fee" included actual court costs and other damages arising from breach of a lease. The ) amendment to section 42-46 unequivocally authoriz.es landlords to charge defaulting tenants for such costs. Because the amendment provided express guidance concerning an issue on which the statute . ,· was silent, this court predicts that the Supreme Court of North Carolina would interpret the . . amendment as clarifying. See Ray, 366 N.C. at 10, 727 S.E.2d at 682; Ferrell, 334 N.C. ·at 659, 435 ' .. . ·. ~ .: S.E.2dat315; Suarezv. CamdenProp. Tr., No. 5:17-CV-124-D,20,19WL 1301951,at*4(E.D.N.C. ·~·. Mar. 21, 2019), appeal docketed, No. 19-1367 (4th Cir. 2019)~ : Moreover, section 42-46(i) distinguishes the "out-of-pocket expenses" authorized by secti~n 42-46(i) from the "late fees" governed by sections 42-46(a) and 42-46(b) and the "administrative fees" governed by.sections 4246(e}-(g). See N.C. Gen. Stat. § 42-46(i). This distinction suggests that a ''fee," before the amendment, did not include actual out-of-pocket expenses. Thus, a comparison ofthe statute's text before and after amendment indicates that the amendment was clarifying. Notably, the General Assembly enacted the amendment in':response to a Wake County ... . ·, .. Superior Court decision that read section 42-46(h)(3) broadly. See 2d Am. Compl. [D.E. 42] 1f 63 . . n.4; Pl.'s Ex. 27 [D.E. 42-27]. These circumstances bolster ~e_.conclusion Assembly's legislative intent was to clarify an ambiguity in section 42-46. that the General See,~ Thomas v. ' Barnhill, 102 N.C. App. 551, 553-54, 403 S.E.2d 102, 103--04 (1991); cf. State ex rel. N.C. Milk Comm'n v. Nat'l Food Stores. Inc., 270 N.C. 323, 331, 154 S.E.2d.548, 555 (1967) (stating that ''the 12 circumstances surrounding [the] adoption" of a statute can demonstrate legislative intent). Moreover, the 2018 amendment's original (albeit removed) prefurible stated that the General '' ' Assembly intended to ''reaffirm" that landlords could charge defaulting tenants out-of-pocket expenses. S.B. 224 (2d ed.), 2017 Gen. Assemb., Reg. Sess. (N.C. 2017). Finally, the 2018 amendment's original version expressly did not have retroactive effect, but the General Assembly changed that provision in the amendment's final version. See id. Thus, the 2018 amendment's text and legislative history show that the General Assembly's legislative intent was to clarify the RRAA' s application to court costs and out-of-pocket expenses.3 Because the amendment is clarifying, it applies to this action: See' Ray, '366 N.C. at 9, 727 S.E.2d at 681; Wells v. Consol. Judicial Ret. Sys. ofN.C., 354 N~C; 313, 318,-553 S.E.2d 877, 880 •' ,·.· (2001); Ferrell, 334 N.C. at 661-62, 435 S.E.2d at 317; Childers, 274 N.C. at260, 162 S.E.2d at 483-84. Accordingly, section 42-46(h)(3) at all times permitted defendants to charge plaintiffs for out-of-pocket expenses (i.e., what plaintiffs allege are "eviction fees"). Moreover, defendants could charge reasonable attorneys' fees. See Suarez, 2019 WL 1301951, at *4-5. Because North Carolina law does not forbid landlords to charge defaulting tenants out-of-pQcket expenses and attorneys' fees, the court grants Inman Park and Vert's motions-to dismiss plaititiffi;'· RRAA claim. As for plaintiffs' NCDCA and UDTPA claims, see 2d .Anl;~ompl. [D.E. 42] mf 239--73, to state a claim under either statute, plaintiffs must plausibly allege .that Inman Park and Vert 3 Plaintiffs argue that the General Assembly's rejection of language in the original draft stating that the legislature aimed to ''reaffirm" landlords' ability to charge out-of-pocket expenses supports their interpretation. See [D.E. 77] 16-17. Legislative history is "often murky, ambiguous, and contradictory." Exxon Mobil Com. v. Allapattah Servs.. Inc., 545 U.S. 546, 568 (2005). Thus, even assuming that one can infer from the General Assembly's rejection ofthe original preamble that it intended to alter the law, this negative inference alone does not outweigh the other evidence that the General Assembly intended only to clarify the RRAA. 13 '._.•' committed an unfair or deceptive act. See Gray v. N.C. Ins. Underwriting Ass'n, 352 N.C. 61, 68, 529 S.E.2d 676, 681 (2000); Davis Lake Cmty. Ass'n. Inc.. v. Feldmann, 138 N.C. App: 292, 296, 530 S.E.2d 865, 868 (2000); Reid v. Ayers, 138 N.C. App. 261, 266, 531 S.E.2d 231, 235 (2000); not forbid their actions, Suarez, 2019 WL 1301951, at *S-6. Because the RRAA does no~.-'·and did . plaintiffs do not plausibly allege an unfair or deceptive act. See, e.g., sUa.rez, 2019 WL 1301951, at *5-6; Milroy v. Bell Partners. Inc., No. 5:18-CV-516-D, 2019 WL 3451506, at *S-6 (E.D.N.C. July 30, 2019) (unpublished). Accordingly, the court grants Imp.an Park and Vert's motions to dismiss for failure to state a claim, and dismisses all claims against Inman Park and Vert. B. state a claim, LincolnandLPCM As for Lincoln and LPCM's motion to dismiss for failure to argue that they are not landlords under the RRAA. See [D.E. 551 8. Plaintiffs allege that Lincoln and LPCM contracted to function as property managers for GreY~~e; Inm~, and Vert and are landlords. See 2d Am. Com.pl. [D.E. 42] ft 17, 20. A "landlord" is "any owner and any rental management company, rental agency, or any other person having the actual or apparent authority of an agent to perform the duties imposed by'' the ,· RRAA. N.C. Gen. Stat. § 42-40(3). An entity that manages a rental property is atandlord. See, e.g., Taylor v. Batts, 201 N.C. App. 728, 689 S.E.2d 601, 2010 WL 103~5, at *2 (2010) (unpublished table decision); cf. Baker v. Rushing, 104 N.C. App. 240, 248, 409 S~E.2d 108; 113 (1991) (stating ' that the RRAA's statutory definition of a landlord is ''broad").. '.·.' \ Lincoln and LPCM are landlords. Thus, the court denies ·.. . Pl~tiffs . ' plausibly allege that '. Lincolt{~d LPCM's motion to dismiss plaintiffs' RRAA, NCDCA, and UDTPA claims for failure to state a claim on that basis. Nonetheless, plaintiffs' RRAA, NCDCA, and UDTPA claims fail for the same reasons discussed concerning Inman Part and Vert. ~ 14 IV. Graystone moves for judgment on the pleadings. Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on the pleadings "[a]fter the pleadings are closed-but early enough not to delay trial." Fed. R. Civ. P. 12(c). A motion for judgment on the pleadings should be granted if ''the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter oflaw." Park Univ. Enters. v. Am. Cas. Co. of Reading, 442 F.3d 1239, 1244 (10th Cir. 2006) (quotation omitted), abrogated on other grounds by Magnus. Inc. v. Diamond State Ins. Co., 545 F. App'x 750 (10th Cir. 2013) (unpublished); see Mayfield v. Nat'lAss'nfor Stock Car Auto Racing. Inc., 674 F.3d 369, 375 (4th Cir.2012);BurbachBroad.Co.ofDel.v.ElkinsRadioCorp.,278F.3d401,405--06(4thCir.2002). The same standard controls a motion for judgment on the pleadings as a motion to dismiss under Rule 12(b)(6). See Burbach Broad. Co., 278 F.3d at 405-06. Greystone' s motion for judgment on the pleadings turns on the same legal issues as Inman Park and Vert' s motions to dismiss for failure to state a claim. Thus, plaintiffs' claims fail for the same reasons. Accordingly, the court grants Greystone's motion for judgment on the pleadings and denies as moot Greystone's motion to sever. v. . ' In sum, the court GRANTS Inman Park and Vert's motions to dismiss for failure to state a claim [D.E. 47, 52] and Greystone's motion for judgment on the pleadings [D.E. 65], and DISMISSES plaintiffs' claims against Inman.Park, Vert, and Greystone. The court DENIES Lincoln and LPCM's motions to dismiss for lack of personal jurisdiction, but GRANTS their motion to dismiss for failure to state a claim [D.E. 54]. The court DENIES AS MOOT the remaining motion [D.E. 49]. 15 SO ORDERED. This I +day ofNovember 2019. 1dms~~m Suites Distri~t Judge United· \ . ... . 16 -~
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