Opinion
CIVIL ACTION NO. 1:20-CV-4512-CC-WEJ
2021-02-18
Oluwasegun Abiodun OYEDEJI, Plaintiff, v. LANDMARK AT BELLA VISTA, L.P., Highmark Residential Sub, LLC d/b/a Milestone Management TRS, Inc., and RentDebt Automated Collections, LLC, Defendants.
Andrew Weiner, Jeffrey Sand, Weiner & Sand LLC, Atlanta, GA, Michael Cardoza, Pro Hac Vice, The Cardoza Law Corporation, San Francisco, CA, for Plaintiff. Kindu A. Walker, Litchfield Cavo, LLP, Atlanta, GA, Tiffany B. Harlow, DeKalb County Law Department, Decatur, GA, for Defendants Landmark at Bella Vista, L.P., Highmark Residential Sub, LLC. Andrew M. Schwartz, Pro Hac Vice, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, PA, Leslie Kali Eason, Gordon & Rees, Montoya McGee Ho-Sang, Gordon Rees Scully Mansukhani LLP, Atlanta, GA, for Defendant RentDebt Automated Collections, LLC.
Andrew Weiner, Jeffrey Sand, Weiner & Sand LLC, Atlanta, GA, Michael Cardoza, Pro Hac Vice, The Cardoza Law Corporation, San Francisco, CA, for Plaintiff.
Kindu A. Walker, Litchfield Cavo, LLP, Atlanta, GA, Tiffany B. Harlow, DeKalb County Law Department, Decatur, GA, for Defendants Landmark at Bella Vista, L.P., Highmark Residential Sub, LLC.
Andrew M. Schwartz, Pro Hac Vice, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, PA, Leslie Kali Eason, Gordon & Rees, Montoya McGee Ho-Sang, Gordon Rees Scully Mansukhani LLP, Atlanta, GA, for Defendant RentDebt Automated Collections, LLC.
ORDER
CLARENCE COOPER, SENIOR UNITED STATES DISTRICT JUDGE
This matter is before the Court on the Non-Final Report and Recommendation (the "R&R") [Doc. No. 29] issued by Magistrate Judge Walter E. Johnson on January 28, 2021. Magistrate Judge Johnson recommends that Defendant Highmark Residential Sub, LLC f/k/a Milestone Management TRS, Inc.’s Amended Motion to Dismiss [Doc. No. 18] be denied and that Defendant Landmark at Bella Vista, L.P.’s Motion to Dismiss [Doc. No. 19] be denied. The record reflects that no objections to the R&R have been filed and that the time period permitted for filing any such objections has elapsed.
Having reviewed the R&R for plain error in accordance with United States v. Slay , 714 F.2d 1093, 1095 (11th Cir. 1983), the Court finds that the R&R is correct both in fact and in law. Accordingly, the Court ADOPTS the R&R [Doc. No. 29] in its entirety. Defendant Highmark Residential Sub, LLC f/k/a Milestone Management TRS, Inc.’s Amended Motion to Dismiss [Doc. No. 18] is DENIED and that Defendant Landmark at Bella Vista, L.P.’s Motion to Dismiss [Doc. No. 19] is DENIED.
SO ORDERED this 18th day of February , 2021.
NON-FINAL REPORT AND RECOMMENDATION
WALTER E. JOHNSON UNITED STATES MAGISTRATE JUDGE
Plaintiff, Oluwasegun Abiodun Oyedeji, filed this action [1] against Landmark at Bella Vista, L.P. ("Landmark"), Highmark Residential Sub, LLC d/b/a Milestone Management TRS, Inc. ("Highmark"), and RentDebt Automated Collections, LLC ("RAC"). He alleges a claim against Landmark and Highmark under the Servicemembers Civil Relief Act, 50 U.S.C. § 3901 et seq. (the "SCRA") (see Compl. Count I, ¶¶ 43-45), and a claim against RAC under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (the "FDCPA") (see Compl. Count II, ¶¶ 46-48.)
This matter is before the Court on Highmark's Amended Motion to Dismiss [18] and Landmark's Motion to Dismiss [19]. Because Defendants' Motions seek dismissal of Count I under Federal Rule of Civil Procedure 12(b)(6) on the same grounds, plaintiff filed an Omnibus Opposition to Defendants' Motions to Dismiss [27]. For the reasons set forth below, the undersigned RECOMMENDS that Defendants' Motions be DENIED .
The Court's reference herein to "Defendants" includes Landmark and Highmark, but not RAC, which did not join in the Motions.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows the Court to dismiss a complaint, or portions thereof, for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss, the Court must take the allegations of the complaint as true and must construe those allegations in the light most favorable to the plaintiff. Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008) (per curiam). Although a court is required to accept well-pleaded facts as true and make reasonable inferences in favor of the plaintiff, it is not required to accept the plaintiff's legal conclusions or unwarranted deductions of fact. Chandler v. Sec'y of Fla. Dep't of Transp., 695 F.3d 1194, 1199 (11th Cir. 2012) (per curiam) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ); Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir. 2006) ; Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005) (per curiam).
A court may dismiss a complaint if it does not plead "enough facts to state a claim to relief that is plausible on its face." Chandler, 695 F.3d at 1199 (internal quotation marks and citation omitted). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), the Supreme Court stated that a complaint "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Although factual allegations in a complaint need not be detailed, those allegations "must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (citations and footnote omitted).
Moreover, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. The mere possibility that the defendant might have acted unlawfully is insufficient to allow a claim to survive a motion to dismiss. Id. Instead, the well-pleaded allegations of the complaint must move the claim "across the line from conceivable to plausible." Twombly, 550 U.S. at 570. However, the factual allegations in a complaint can be sufficient to survive a motion to dismiss even though recovery may be remote or unlikely. Id. at 555-56. As long as the facts alleged create a reasonable expectation that discovery will reveal evidence of the necessary elements, the plaintiff's suit should continue. Id. at 556.
II. ALLEGATIONS OF THE COMPLAINT
Plaintiff is a Logistics Specialist in the United States Naval Reserve. (Compl. ¶ 22.) Defendants are the owner (Landmark) and property management company (Highmark) of the apartment complex (Landmark at Bella Vista) where Plaintiff lived for six years. (Id. ¶¶ 16-17, 22.) On November 15, 2019, Plaintiff provided written notice to Defendants via email that he was being deployed overseas for a period greater than 90 days, that he would be vacating his apartment on December 17, 2019, and that he needed to terminate his lease. (Id. ¶ 23; see also Highmark's Am. Mot. to Dismiss Ex. A [18-2]. ) This written notice included Plaintiff's deployment orders from the Navy. (Compl. ¶ 24.) Defendants, who knew that Plaintiff is a servicemember, rejected that emailed notice on November 18, 2019 "citing his failure to supply the ‘correct form,’ instructed Plaintiff that 60 days' notice was required, and told Plaintiff that he would be ‘breaking the lease since it does not end until 04/27/2020.’ " (Id. ¶ 26).
Exhibit A is a copy of the email attaching a supporting letter that Plaintiff transmitted to Defendants. The Court may consider exhibits attached to a motion to dismiss without converting it to a Rule 56 motion where, as here, Plaintiff referred to a document in the Complaint, the document is central to a claim, and its contents are not in dispute. Harris v. Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir. 1999).
On December 17th, 2019, Plaintiff cleaned and vacated his apartment in order to report to the Navy for an active duty assignment overseas. (Compl. ¶ 27.) On December 20, 2019, Defendants prepared a "Move-out Statement" dunning Plaintiff for, among other things, "30 days short on notice to vacate" and a "Reletting Fee." (Id. ¶ 28.) Defendants then hired RAC to collect this debt from Plaintiff. (Id. ¶ 29.) Plaintiff alleges on information and belief that on or about February 17, 2020, and continuing through the present, every month Defendants furnish information to the Consumer Reporting Agencies that he owes over $2,000. (Id. ¶ 30.)
On or about May 12, 2020, RAC dunned Plaintiff by letter on behalf of Defendants for an amount including the early termination and reletting fees. (Compl. ¶ 35.) On July 7, 2020, Lieutenant Junior Grade ("LTJG") Casey A. Connolly, an attorney with the Navy's Judge Advocate General's Corps, sent a letter to Landmark via email and the United States Postal Service. (Id. ¶ 36; see also Def.'s Ex. B [18-3], copy of email and letter.) The letter from LTJG Casey instructed Defendants that their efforts to collect early termination and reletting fees violated the SCRA, and demanded that they immediately cease collection on the alleged debt. (Compl. ¶ 37.) Landmark received the letter from LTJG Casey. (Id. ¶ 38.) Defendants ignored the letter from LTJG Casey, and continued to attempt to collect this debt from Plaintiff. (Id. ¶ 39.) Since being notified in writing by a military attorney of their alleged violation of the SCRA, Defendants have neither responded nor changed their position. (Id. ¶ 40.) Plaintiff alleges that he has been damaged by Defendants' actions. (Id. ¶ 42.)
III. DISCUSSION
Congress passed the SCRA to "strengthen the rights and protections afforded U.S. military personnel called to active duty so that they are not harmed in civil, financial or legal proceedings." 149 Cong. Rec. H3688-03, 2003 WL 21025298, at *29 (May 7, 2003). Accordingly, courts are to give broad protections to servicemembers when interpreting the statute. See Boone v. Lightner, 319 U.S. 561, 575 (1943) ("[SCRA] is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation."). "Such an interpretation ‘leaves the soldier disentangled to pursue his fight for our material and spiritual heritage, and free to devote his entire energy to the defense needs of the nation.’ " Venneman v. BMW Fin. Servs. NA, LLC, 990 F. Supp. 2d 468, 477 (D.N.J. 2013) (quoting Patrikes v. J.C.H. Serv. Stations, 180 Misc. 917, 41 N.Y.S.2d 158, 166 (N.Y.Ct.1943) ).
With this background in mind, the Court begins with the statutory language. Section 3955 is entitled, "Termination of residential or motor vehicle leases." Section 3955(c) provides in relevant part as follows:
(c) Manner of termination
(1) In general
Termination of a lease under subsection (a) is made—
(A) by delivery by the lessee of written notice of such termination, and a copy of the servicemember's military orders, to the lessor (or the lessor's grantee), or to the lessor's agent (or the agent's grantee).
Section 3955(c)(2), which governs how the service member should deliver the aforementioned written notice of termination, provides as follows:
(2) Delivery of notice
Delivery of notice under paragraph (1)(A) may be accomplished—
(A) by hand delivery;
(B) by private business carrier; or
(C) by placing the written notice in an envelope with sufficient postage and with return receipt requested, and addressed as designated by the lessor (or the lessor's grantee) or to the lessor's agent (or the agent's grantee), and depositing the written notice in the United States mails.
Id. § 3955(c)(2)(A)-(C).
In their Motions to Dismiss, Defendants argue that the Complaint fails to state a claim because Plaintiff did not comply with the delivery requirements of the notice prescribed under the SCRA. They contend that the clear terms of Section 3955(c)(2) do not contemplate or provide email as a proper means of delivery for a servicemember to effectuate notice of termination of a lease. In addition, they assert that Congress has recognized that email is not a proper means of delivery of notice because a bill is pending in the House of Representative to amend the SCRA to permit electronic notification with respect to certain lease terminations by members of the uniformed services. See 21st Century SCRA Act, H.R. 7529, 116th Cong. § 2 (2020).
Plaintiff responds that the notice methods described in Section 3955(c)(2) are permissive given the statute's use of the word "may." He also contends that Congress' use of the word "shall" in other parts of the SCRA shows that the three options listed in Section 3955(c)(2) are not exclusive. Plaintiff further argues that the SCRA should be construed liberally to protect servicemembers so as to fulfill the purpose of the statute, which is to enable servicemembers to devote their entire energy to the defense needs of the Nation. (Pl.'s Resp. [27] 7.) Finally, Plaintiff asserts that the proposed legislation mentioned by Defendants does not alter the permissive "may" language in Section 3995(c)(2), but simply clarifies that email is also an available method of delivering the written notice required by Section 3955(c)(1).
Plaintiff also cites two settlement agreements in cases instituted by the Department of Justice where landlords agreed to accept notice of lease termination via email or text message. (See Pl.'s Exs. B [27-2] & C [27-3].)
The issue here then is whether delivery of written notice by email is sufficient under the statute. The parties have not cited any relevant cases addressing this issue. The Court's research has located one: MIE Properties-La, L.L.C. v. Carey, 213 So.3d 1274 (1st Cir. La. Ct. App. 2017).
In Carey, the Louisiana National Guard called Mr. Carey to active duty on February 7, 2013. At that time, he and his wife were operating a business in property leased from MIE Properties. Carey, 213 So.3d at 1276-77. Because the business was losing money, on August 8, 2013, Ms. Carey turned over the keys to MIE Properties vacated the premises. MIE Properties filed suit on the lease on April 7, 2014. Id. at 1277. Ms. Carey answered on May 28, 2014, and on June 2, 2014, Mr. Carey submitted notice requesting termination of the lease under the SCRA by sliding a letter under the locked door of MIE Properties. Todd Pevey, Vice President of MIE Properties, acknowledged that he had received the letter. Id. On June 12, 2014, Mr. Carey filed an answer generally denying the allegations of the suit, asserting that he had been on active military duty since February 7, 2013, and seeking relief under the SCRA. Id.
MIE Properties prevailed at trial, leading Mr. Carey to appeal. Carey, 213 So.3d at 1277. Mr. Carey raised a number of assignments of error, but the third is relevant here. He argued that the trial court committed reversible error when it failed to find that he had validly terminated the lease under the SCRA by sliding the letter under MIE Properties' locked door. Id. at 1277-78. After quoting numerous provisions of the SCRA in its opinion, id. at 1278-80, the First Circuit Court of Appeal agreed with Mr. Carey, writing as follows:
The method provided for termination of a lease under the SCRA is permissive. It provides that termination "may" be accomplished by hand delivery, private business carrier, or by U.S. mail with return receipt requested. The permissive use of "may" rather than "shall" or "must" indicates that other methods may be used. As Mr. Pevey verified that he received the termination notice in June 2014, we find that the delivery system used by Mr. Carey was sufficient notice of termination.
...
Therefore, we find that the trial court committed legal error when it failed to find that Mr. Carey's hand delivery of the June 2, 2014 lease termination notice to MIE Properties, the receipt of which was acknowledged by Mr. Pevey, validly terminated the lease as to Mr. Carey under the SCRA, effective July 31, 2014.
Id. at 1280.
The undersigned reports that while Carey is not controlling, it is persuasive. As in Carey, the method of delivery here was not one of those listed in the statute. However, the Louisiana Circuit Court of Appeal's finding that the permissive use of "may" rather than "shall" or "must" in the SCRA indicates that other methods may be used is consistent with binding precedent on statutory construction. See Halo Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 93, 136 S. Ct. 1923, 1931 (2016) (when construing a statute, the word "may" clearly connotes discretion); see also Alabama v. Shalala, 124 F. Supp. 2d 1250, 1264-65 (M.D. Ala. 2000) ("The use of the term ‘may’ in a statute is generally construed as permissive rather than as mandatory.") (quoting Dorris v. Absher, 179 F.3d 420, 429 (6th Cir. 1999) ). Because sliding written notice under a landlord's locked door was ruled sufficient in Carey, there is no principled reason why emailing a notice to the landlord would be insufficient here, especially when Plaintiff alleges that Defendants received the email. At this early stage of the case, Plaintiff has plausibly alleged that the notification method he used complied with Section 3955(c)(2).
IV. CONCLUSION
For the reasons set forth above, the undersigned RECOMMENDS that defendant Highmark Residential Sub, LLC d/b/a Milestone Management TRS, Inc.'s Amended Motion to Dismiss [18] and defendant Landmark at Bella Vista, L.P.'s Motion to Dismiss [19] be DENIED .
SO RECOMMENDED , this 28th day of January, 2021.