Conley v. Roseland Residential Trust & Realpage Util. Mgmt. Inc.
| Decision Date | 05 March 2020 |
| Docket Number | CIVIL ACTION NO. 18-10629-WGY |
| Citation | 442 F.Supp.3d 443 |
| Parties | Ioana CONLEY and Alexander Conley, Plaintiffs, v. ROSELAND RESIDENTIAL TRUST and RealPage Utility Management Inc., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
David J. Relethford, Michael C. Forrest, Matthew T. LaMothe, Forrest, LaMothe, Mazow, McCullough, Yasi & Yasi, P.C., Robert E. Mazow, Mazow & McCullough, Salem, MA, for Plaintiffs.
Thomas H. Wintner, Mathilda McGee-Tubb, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC, Andrew C. Yost, Jasmine Coo, Foley & Lardner LLP, Boston, MA, Jaikaran Singh, Pro Hac Vice; Foley & Lardner LLP, San Diego, CA, for Defendants.
YOUNG, D.J.
This landlord-tenant case is a purported class action brought by Ioana and Alexander Conley ("the Conleys") against their former landlord, Roseland Residential Trust ("Roseland"), and its billing contractor, RealPage Utility Management ("RealPage"). The Conleys allege that Roseland and RealPage wrongly charged them for gas and water utilities for nearly four years in their apartment because of unlawful "submetering" systems. On behalf of themselves and a class of thousands of similarly situated tenants, the Conleys assert claims of unfair and deceptive practices under Mass. Gen. Laws ch. 93A, § 2 and negligent misrepresentation. Pending before this Court are the Conleys' motion for class certification and all parties' cross-motions for summary judgment.
For the reasons that follow, the Court DENIES the motion for class certification and GRANTS the motions of Roseland and RealPage for summary judgment.
In July 2014, Ioana Aprodu (later Conley) moved into 16 Quarry Lane Apartment 4409, Maiden, Massachusetts ("the Apartment") with her sister, Adela. Def. Roseland's Statement Undisputed Material Facts Supp. Mot. Partial Summ. J. ("Roseland's Statement Facts") ¶ 1, ECF No. 81; Pls. Ioana Conley's and Alexander Conley's Statement of Undisputed Material Facts Supp. Partial Mot. Partial Summ. J.
Against Def.'s Roseland ( ) ¶ 1, ECF No. 75. That building, called the Chase at Overlook Ridge, was owned and managed by Roseland. Pls.' Statement Facts ¶ 7. In January 2016, the two sisters were joined in the Apartment by Ioana's then-boyfriend (now husband), Alexander Conley. Roseland's Statement Facts ¶ 3. The Conleys lived in the Apartment until February 2018. Id. ¶ 5.
Over nearly four years, Ioana, Adela, and Alexander executed a series of leases for the Apartment with the proviso that "Owner will send a bill to Resident for the monthly gas heat, hot water, and water and sewer use." Roseland's Statement Facts ¶ 7. The leases described in detail the building's process of submetering gas and water utilities. Id. The leases explained that the Apartment's "gas furnace is monitored by an Energy Cost Allocation system to determine the amount of time, each monthly billing period, that gas is combusted by furnace to heat the Apartment," and "[t]he gas used to heat vacant apartments and common areas of the building (if any) is monitored and allocated by exactly the same method and is paid for by the Owner"; the leases further explained that water consumption "is monitored by a utility grade water meter to measure the amount of water consumed in the Apartment" and that the water submetering complied with applicable state law requirements. Id.; Pls.' Statement Facts ¶¶ 12-13.
In general, the submetering proceeded in practice as described in the leases. See Roseland's Statement Facts, Ex. D, Deposition of Ioana Conley 62:10-16, ECF No. 81-4. Roseland did not itself bill the Conleys for utilities each month but instead hired a contractor, RealPage, to handle the calculations and billing of utilities. Def. RealPage Utility Management, Inc.'s Statement of Undisputed Facts ("RealPage's Statement Facts") ¶ 6, ECF No. 86. Although RealPage sent paper bills in the mail, the Conleys' payments were made through an online portal maintained by Roseland. Id. ¶¶ 18-20. The Conleys paid their submetered utility bills each month throughout their tenancy. Pls.' Statement Facts ¶¶ 20-22.
There were some deviations from the lease, however. First, Roseland did not actually monitor the gas heat used in vacant apartments and common areas of the building; instead, in an effort to avoid billing tenants for gas that they did not use, RealPage simply lopped 40% off the top of the bill to be charged to tenants, which RealPage regarded as a "quite generous" estimate of the non-tenant gas consumption. Roseland's Statement Facts ¶ 46; Pls.' Mem. Roseland, Ex. 35,1 Deposition of Amye Baker 80:4-11, ECF No. 79-35. Despite this peculiar practice, or perhaps because of it, the Conleys have not alleged that they paid for utilities that they did not use. See Roseland's Statement Facts, Ex. E, Deposition of Alexander Conley 59:8-20, ECF No. 81-5. The Conleys assert that because Roseland did not monitor the vacant units and common areas, no one really knows whether the Conleys paid for more gas than they used. See Pls.' Mem. Roseland 3-4.2
A second deviation from the lease was that Roseland's water and sewer submetering did not comply with state law. See Mass. Gen. Laws ch. 186, § 22. Specifically, Roseland concedes that it did not file the necessary certifications with a board of health until March 2018, after the Conleys had already left. Pls.' Mem. Roseland, Ex.5, Def. Roseland Residential Trust's Answers Pl. Alexander Conley's First Set of Interrogatories ("Roseland's Interrogatory Answers"), Interrogatory 2, ECF No. 74-5.
In March 2013, Roseland was granted a variance by the Maiden Board of Health from the ordinary restrictions on gas submetering found in the State Sanitary Code. See 105 CMR 410.354 ; Roseland's Statement Facts, Ex. G 1, ECF No. 81-7. The Maiden variance was addressed to Roseland's attorney, Thomas Callaghan, and covered several Roseland properties in Maiden, including 16 Quarry Lane, "allow[ing] for the use of a master gas meter and the automated Energy Cost Allocation System." Id.
A few months later, on September 5, 2013, the Massachusetts Department of Public Health issued a memorandum to "[a]ll local Boards of Health and Health Departments" stating that "[a]ny variance granted by a board of health for submetering of electricity or gas is invalid." Pls.' Statement Facts Roseland ¶¶ 107-109; Pls.' Mem. Roseland, Ex. 27, Memorandum Re: Submetering of Electricity and Gas ("DPH Memo") 1-2, ECF No. 74-27). Maiden's Director of Public Health forwarded the memorandum to Roseland's attorney the same day and Joe Shea, Roseland's Senior Vice President/Operating Manager, received it by October 1, 2013. Pls.' Statement Facts Roseland ¶¶ 110-111. On October 10, 2014, Roseland's Regional Director of Massachusetts, P.J. Lefort, wrote an email to the company's Senior Vice President of Operations stating that the Maiden gas submetering variance was "illegal" and "should never have been permitted." Id. ¶ 115.
In March 2018, the Conleys filed putative class-action claims against their former landlord, Roseland, and Roseland's third-party billing contractor, RealPage (formerly known as NWP Services Corporation) in Massachusetts Superior Court. Notice of Removal, Ex. A, Pls.' First Am. Class Action Compl. and Demand for Jury Trial ("FAC"), ECF No. 1-1. Roseland then removed the case to this Court under the Class Action Fairness Act, ECF No. 1, and soon afterward both Roseland and RealPage filed motions to dismiss, ECF Nos. 14, 17. After a hearing on September 25, 2018, this Court granted in part Roseland's and RealPage's motions to dismiss, reducing the Conleys' claims to ten against Roseland and three against RealPage. ECF No. 38.
The Conleys filed a motion to certify the class in January 2019, ECF No. 47,3 and a hearing was held on June 5, 2019, ECF No. 69. The motion was denied in part but taken under advisement as to the submetering claims. Electronic Clerk's Notes, ECF No. 69. On July 26, 2019, the Conleys moved for partial summary judgment against Roseland, ECF No. 73, and against RealPage, ECF No. 76. On the same day, Roseland moved for partial summary judgment against the Conleys on all the submetering counts, ECF No. 77; and RealPage moved for full summary judgment against the Conleys, ECF No. 82.
The Court heard oral argument on the motions for summary judgment on October 8, 2019 and gave the parties 60 days to negotiate a settlement. ECF Nos. 110, 111. In a subsequent update, the parties informed the Court that they will settle the claims relating to counts X through XIV, leaving only the counts based upon the water, sewer, and gas submetering systems. ECF No. 115. Accordingly, five counts remain against Roseland: Count II (negligent misrepresentation for gas submetering); Count III (violation of chapter 93A for gas submetering); Count VI (negligent misrepresentation for water and sewer submetering); Count VII (violation of chapter 93A for water and sewer submetering); Count VIII (violation of chapter 93A for water and sewer submetering). Two counts remain against RealPage: Count II (negligent misrepresentation for gas submetering); Count VI (negligent misrepresentation for water and sewer submetering).
The Conleys propose to certify the following class, as relevant to the remaining counts, under Rule 23 of the Federal Rules of Civil Procedure : "All current and former residential tenants who [w]ere charged for gas, water and/or sewer submetered services by Roseland and/or [RealPage]." Class Cert. Mem. 4.4 For the reasons that follow, the Court DENIES the motion to certify the class.
"A plaintiff who seeks to certify a class action has the burden of demonstrating that four prerequisites enumerated in Federal Rule of Civil Procedure 23(a), plus one of the provisions of Federal Rule of Civil Procedure 23(b), are satisfied." In re TJX Cos. Retail Sec. Breach Litig., 246...
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