Axford v. TGM Andover Park, LLC
| Decision Date | 22 February 2021 |
| Docket Number | Civil Action No. 19-cv-11540-ADB |
| Parties | TIMOTHY AXFORD, SENAA AXFORD, and YUSUF M. AXFORD, Plaintiffs, v. TGM ANDOVER PARK, LLC, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
BURROUGHS, D.J.
Plaintiffs Timothy Axford ("T. Axford"), Senaa Axford ("S. Axford"), and Yusuf M. Axford ("Y. Axford," and collectively with T. Axford and S. Axford, "Plaintiffs") bring this action against TGM Andover Park, LLC ("TGM"), alleging various statutory, tort, and contract claims in connection with their tenancy at Unit 4012 (the "Apartment") in TGM's apartment complex, TGM Andover Park ("Andover Park"), located at 113 Thoreau Way in Lawrence, Massachusetts. See [ECF No. 1-1 ("Compl.")]. Originally filed in state court, TGM removed the action to this Court based on diversity of citizenship. See [ECF No. 1]. Currently before the Court is TGM's motion for judgment on the pleadings. [ECF No. 19]. For the reasons set forth below, TGM's motion is GRANTED in part and DENIED in part.
Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008) () (citations and internal quotation marks omitted). The Court provides the following background consistent with this standard.
TGM's agent, Rebecca Landquist, showed T. Axford and S. Axford the Apartment on or around August 15, 2018. [Compl. ¶¶ 14-15]. During this showing, Ms. Landquist told them that the Apartment complied with all state and municipal codes and was habitable. [Id. ¶ 15]. T. Axford signed a lease agreement ("Lease")1 for the Apartment on August 25, 2018.2 [Id. ¶ 16]. At the time, S. Axford was six months pregnant with their son, Y. Axford, who was born on November 16, 2018. [Id. ¶¶ 18, 25]. Prior to showing Plaintiffs the Apartment, TGM did not have it inspected, as required by the City of Lawrence's Municipal Code, or obtain an occupancy permit as required by law. [Id. ¶¶ 12-13].
Shortly after T. Axford and S. Axford moved into the Apartment, they began to experience issues, including a rat infestation, problems with the hot water and dryer, and intermittent difficulties with the heat. [Compl. ¶¶ 20-22, 24]. They promptly notified TGM of these issues, as they arose, pursuant to Andover Park's maintenance procedures. [Id. ¶¶ 19-22,24]. TGM sent the proper professionals to address the issues in most cases, although the dryer remained unrepaired for the duration of Plaintiffs' tenancy. [Id.] Regarding the heat, each time Plaintiffs provided notice of a malfunction, TGM informed them that the pipes in Andover Park were old and needed to be replaced, but that TGM would do its best to restore the heat. [Id. ¶ 22]. Plaintiffs continued to experience sporadic heat issues throughout their tenancy. [Id.].
In November 2018, the City of Lawrence notified TGM of a broken air release force valve connected to TGM's sewage line, and TGM performed repairs on the broken valve as required under its easement, but did not inspect its other sewage lines.3 [Compl. ¶¶ 29-35]. Shortly thereafter, multiple residents of Andover Park began to experience sewage backup issues, and TGM sent a local pumping company to pump Andover Park's sewage lines. [Id. ¶¶ 36-37].
The morning of December 9, 2018, both toilets in the Apartment began to overflow, resulting in raw human sewage flooding the Apartment. [Compl. ¶ 41]. The previous day, TGM had informed all Andover Park residents via email that the main office's phone lines were down, provided an emergency phone number, and said that the main office would open at noon on December 9. [Id. ¶ 40]. Plaintiffs left multiple messages on the emergency line, but after receiving no response, went to the main office to wait for it to open. [Id. ¶ 43-46]. Despite announcing a noon opening, Ms. Landquist did not arrive until 12:30 PM and, Shawn Moury, the head of maintenance, did not arrive until 1:00 PM. [Id. ¶¶ 46-48]. Mr. Moury instructed Plaintiffs to immediately evacuate the Apartment and take as many of their belongings with themas possible. [Id. ¶ 49]. Plaintiffs did so, going to a relative's apartment, also located in Andover Park, while TGM's agents began attempting to diagnose and fix the problem. [Id. ¶ 50]; see also id. ¶ 52]. That same day, Mr. Moury discovered a broken sewage pipe approximately 100-200 feet from the Apartment. [Id.].
In the days following the flood and evacuation, Ms. Landquist informed Plaintiffs that TGM could provide a fully furnished apartment (at Plaintiffs' expense) provided that Plaintiffs signed a release of all claims against TGM, but Plaintiffs refused. [Compl. ¶ 60]. On December 18, 2018, Plaintiffs returned to the Apartment with Ms. Landquist to retrieve their clothing. [Id. ¶ 68]. Plaintiffs told Ms. Landquist that they were "very distressed" by the situation and told her that being displaced from their home and losing their belongings was having an "extreme impact" on them, particularly given that Y. Axford was a newborn. [Id. ¶ 69]. Ms. Landquist responded that TGM would pay for the cost of dry-cleaning Plaintiffs' clothing. [Id. ¶ 70]. The first two dry-cleaning bills came to a total of approximately $4,200, which TGM initially refused to pay, thereby preventing Plaintiffs from picking up their clothes. [Id. ¶¶ 70-72]. Eventually, TGM paid for the first bill which totaled approximately $1,500, but refused to pay for the remainder; Ms. Landquist stated that she did not anticipate that the bill would be so high.4 [Id. ¶ 72].
On January 2, 2019, Ms. Landquist informed Plaintiffs that they could safely return to the Apartment. Upon their return, Plaintiffs discovered that nearly all the floors, walls, and fixtures had been removed and that their remaining belongings were in piles and still contaminated withsewage. [Compl. ¶¶ 73, 75, 77]. Further, items of value (including a green card, designer items, and floor rugs) were missing, damaged, or had been disposed of without Plaintiffs' consent. [Id. ¶¶ 78, 80].
On January 22, 2019, Plaintiffs and TGM agreed to a deal whereby Plaintiffs would sign a new lease (that did not include a release of claims against TGM) for an apartment that would come fully furnished for three months. [Compl. ¶ 92]. Due to their inability to recover financially after losing all their belongings in the sewage flood, Plaintiffs were late making payments for the first two months of their new lease, and they were unable to procure new furniture once the three-month fully furnished period ended. [Id. ¶¶ 95, 97]. Ultimately, Plaintiffs moved out of the new apartment in April 2019, after giving notice to TGM. [Id. ¶ 97].
The Plaintiffs filed their state court complaint in the Northeast Housing Court in Lawrence, Massachusetts on June 13, 2019. See [Compl.]. On July 12, 2019, TGM removed the action to this Court based on diversity of citizenship, pursuant to 28 U.S.C. §§ 1332 and 1441. [ECF No. 1 at 1]. TGM subsequently filed its answer together with affirmative defenses and counterclaims, on July 19, 2019.5 [ECF No. 4]. Plaintiffs answered TGM's counterclaims on August 9, 2019. [ECF No. 7]. On May 18, 2020, TGM filed the instant motion for judgment on the pleadings under Fed. R. Civ. P. 12(c). [ECF No. 19]. Plaintiffs opposed, [ECF No. 23], TGM replied, [ECF No. 26], and Plaintiffs filed a sur-reply, [ECF No. 29].
"A Rule 12(c) motion for judgment on the pleadings 'is treated much like a Rule 12(b)(6) motion to dismiss.'" Santiago v. Bloise, 741 F. Supp. 2d 357, 360 (D. Mass. 2010) (quoting Perez-Acevedo, 520 F.3d at 29). Although a defendant may have "moved for judgment on the pleadings pursuant to Rule 12(c) . . . , it is well established that the Court may apply to said rule the applicable standard of review of a Rule 12(b)(6) motion to dismiss." Ramirez-Averasturi v. Rivera Gonzalez, No. 03-cv-02360, 2005 WL 2178795, at *2 (D.P.R. Sept. 8, 2005); see Oses v. Vose, No. 90-cv-11642, 1994 WL 500663, at *2 (D. Mass. Aug. 9, 1994) ( ). "Like Rule 12(b)(6), Rule 12(c) does not allow for any resolution of contested facts; rather, a court may enter judgment on the pleadings only if the uncontested and properly considered facts conclusively establish the movant's entitlement to a favorable judgment." Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st Cir. 2006) (citing Rivera-Gomez v. De Castro, 843 F.2d 631, 635 (1st Cir. 1988)). "[T]he court may not grant a defendant's Rule 12(c) motion 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Rivera-Gomez, 843 F.2d at 635 (quoting George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir. 1977)).
"[T]o survive a Rule 12(b)(6) motion (and, by extension, a Rule 12(c) motion) a complaint must contain factual allegations that 'raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true . . . .'" Perez-Acevedo, 520F.3d at 29 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[D]etailed factual allegations" are not required, but the complaint must set forth "more than labels and conclusions," Twombly, 550 U.S. at 555...
To continue reading
Request your trial