Roberts v. Hamer

• Decision Date: 06 October 2011
• Docket Number: No. 09–6481.,09–6481.
• Citation: 655 F.3d 578
• Parties: Christina ROBERTS, next friend of Howard Felix Wipfel, a minor, and Thealyn Wipfel, a minor, Plaintiff–Appellant,v.Christopher HAMER; Joan Hamer, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

655 F.3d 578

Christina ROBERTS, next friend of Howard Felix Wipfel, a minor, and Thealyn Wipfel, a minor, Plaintiff–Appellant,

v.Christopher HAMER; Joan Hamer, Defendants–Appellees.

No. 09–6481.

United States Court of Appeals, Sixth Circuit.

Argued: June 10, 2011.Decided and Filed: Aug. 26, 2011.Rehearing and Rehearing En Banc Denied Oct. 6, 2011.

ARGUED: Steven J. Megerle, Covington, Kentucky, for Appellant. Sherrill P. Hondorf, Hondorf Law Office, Batavia, Ohio, for Appellees. ON BRIEF: Steven J. Megerle, Covington, Kentucky, Robert N. Trainor, Covington, Kentucky, for Appellant. Sherrill P. Hondorf, Hondorf Law Office, Batavia, Ohio, Donald L. Nageleisen, Covington, Kentucky, for Appellees.Before: COLE, McKEAGUE, and GRIFFIN, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Plaintiff Christina Roberts, proceeding solely as the next friend of her two minor children, appeals the district court's dismissal of her children's claims against defendants Christopher and Joan Hamer for violations of the disclosure requirements contained in the Residential Lead–Based Paint Hazard Reduction Act of 1992 (“RLPHRA”), 42 U.S.C. §§ 4851–4856. Because the statute does not provide her children with a cause of action to sue for the violations, we affirm.

I.

Christina Roberts is the mother of minors Howard Felix Wipfel and Thealyn Wipfel. In October 2002, Roberts and her partner (also the father of Roberts's two children) entered into a lease agreement with Christopher and Joan Hamer to rent an apartment in Covington, Kentucky. Before entering into the agreement, defendants allegedly failed to provide the family with federally-required disclosure forms regarding the potential presence of lead-based paint in the apartment building. Defendants also failed to provide the family with a precautionary pamphlet detailing how to protect against the dangers of lead-based paint. As a result of these failures, Roberts's children “were conceived, and resided in the subject property for several years where unknown to them high levels of lead were present.” Roberts's minor children allegedly suffered damages as a result of the exposure to lead paint in the building and will continue to suffer physical and mental injury for the rest of their lives.

On behalf of her children, Roberts, as their next friend, filed a seven-count complaint against defendants. In count one, she contends that defendants' failure to make the appropriate disclosures before the family entered into the lease agreement violated the RLPHRA and the regulations promulgated thereunder. In counts two through seven, she asserts violations of both state law and the federal Toxic Substances Control Act, as amended (“TSCA”), 15 U.S.C. §§ 2601–2629.

Defendants moved under Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure to dismiss all seven claims. With respect to the RLPHRA claim, defendants argued that the children lacked standing to assert a claim under the statute. They argued also that the children lacked a private right to sue for money damages under the TSCA. They sought a discretionary dismissal of the state-law claims without prejudice under 28 U.S.C. § 1367(c). Defendants included in their motion and supporting brief facts that were uncovered during discovery in a related state action involving Roberts. Roberts moved to strike defendants' entire motion on the basis that such material could not be considered on a motion to dismiss and that converting defendants' motion into one for summary judgment was not possible because the factual statements contained in the motion were unsupported by citations to record evidence. See Fed.R.Civ.P. 56(c)(1).

The district court granted defendants' motion, dismissed the federal claims with prejudice, and dismissed the state-law claims without prejudice in its discretion under 28 U.S.C. § 1367. It found it unnecessary to consider materials outside of the complaint referenced in defendants' motion to dismiss, confined its review to the complaint's allegations, and denied as moot Roberts's motion to strike. The district court considered Roberts's request that she be granted leave to amend the complaint to assert a claim against defendants under the RLPHRA in her own capacity, but denied leave based on futility because her individual claim would be barred by the statute of limitations.

Roberts timely appealed.

II.

Although Roberts appeals the district court's entire order of dismissal, see Notice of Appeal, she has briefed only the dismissal of the RLPHRA claim and the related denial of her motion to strike. Accordingly, we address the RLPHRA claim only. See Terry v. Tyson Farms, Inc., 604 F.3d 272, 280 n. 5 (6th Cir.2010) (noting that issues not raised and argued on appeal are deemed forfeited). And given that the district court considered only the allegations in the complaint, we find no error in its denial of Roberts's motion to strike as moot.

A.

Regarding the appropriate standard of review, the district court did not specify the legal standards it applied to defendants' motion to dismiss, which was brought under subparagraphs (1) and (6) of Rule 12(b). The court ultimately concluded that the children lacked “standing” to sue under the RLPHRA, suggesting that it considered defendants' motion under Rule 12(b)(1). See, e.g., Stalley v. Methodist Healthcare, 517 F.3d 911, 916 (6th Cir.2008) (“We review de novo a district court's dismissal of a case for lack of standing—lack of subject matter jurisdiction—under Fed. R. Civ. Proc. 12(b)(1).”). Courts that have addressed this very issue also have framed the problem in terms of “standing.” See Mason ex rel. Heiser v. Morrisette, 403 F.3d 28, 28 (1st Cir.2005) (“The issue presented in this appeal is whether a lessee's minor children have standing to sue a lessor for failure to disclose information regarding the hazards of lead paint as required by the [RLPHRA].”); McCormick v. Kissel, 458 F.Supp.2d 944, 947 (S.D.Ind.2006) (concluding that “because an individual's standing to sue may go beyond what is explicitly stated in a statute, D.M. does have standing under RLPHRA”); see also Cudjoe ex rel. Cudjoe v. Dep't of Veterans Affairs, 426 F.3d 241, 250 (3d Cir.2005).

Framing the issue in this way, however, is potentially confusing because “standing,” by itself, traditionally has referred to whether a plaintiff can satisfy Article III's case-or-controversy requirement, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Davis v. Passman, 442 U.S. 228, 239 n. 18, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (“[S]tanding is a question of whether a plaintiff is sufficiently adversary to a defendant to create an Art. III case or controversy, or at least to overcome prudential limitations on federal-court jurisdiction[.]” (emphasis omitted)), and there is no doubt that the children satisfy this threshold jurisdictional requirement. The parties' briefs on appeal demonstrate their confusion on the issue. Defendants contend that “these two minor children cannot invoke the court's federal question jurisdiction under the RLPHRA because Congress did not empower them to do so [,]” while at the same time recognizing that “the District Court did have subject matter jurisdiction over claims under the RLPHRA[.]” And Roberts devotes a section of her brief to explaining why her children have Article III and prudential standing.

The parties have confused the questions of constitutional and prudential standing with statutory standing, which asks “whether this plaintiff has a cause of action under the statute.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 97 n. 2, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The question is closely related to the merits inquiry (oftentimes overlapping it) and is analytically distinct from the question whether a federal court has subject-matter jurisdiction to decide the merits of a case. See id.; Davis, 442 U.S. at 239 n. 18, 99 S.Ct. 2264 (distinguishing the concepts of Article III standing and cause of action and noting that “[w]hether petitioner has asserted a cause of action ... depends not on the quality or extent of her injury,” as does the inquiry under Article III standing, “but on whether the class of litigants of which petitioner is a member may use the courts to enforce the right at issue”); see also Radha A. Pathak, Statutory Standing and the Tyranny of Labels, 62 Okla. L.Rev. 89, 111 (2009) (discussing the tendency of federal courts, especially in ERISA cases, to incorrectly treat statutory standing as a threshold inquiry akin to jurisdiction—sometimes treating it as jurisdictional—instead of addressing it as a merits question). This case concerns statutory standing, an issue we find to be a matter of statutory construction, not jurisdiction.

Where a plaintiff lacks statutory standing to sue, her claim should be dismissed for failure to state a claim upon which relief can be granted, not for lack of subject-matter jurisdiction. See Traverse Bay Area Intermediate Sch. Dist. v. Mich. Dep't of Educ., 615 F.3d 622, 626 (6th Cir.2010); Vaughn v. Bay Envtl. Mgmt., Inc., 567 F.3d 1021, 1024 (9th Cir.2009); ¹ Bridges v. Am. Elec. Power Co., 498 F.3d 442, 444 (6th Cir.2007); see also Northwest Airlines, Inc. v. Cnty. of Kent, Mich., 510 U.S. 355, 365, 114 S.Ct. 855, 127 L.Ed.2d 183 (1994) (“The question whether a federal statute creates a claim for relief is not jurisdictional”); cf. Cobb v. Contract Transp., Inc., 452 F.3d 543, 548–50 (6th Cir.2006) (rejecting contention on appeal that the district court lacked subject-matter jurisdiction over plaintiff's FMLA claim because defendant did not meet the statute's definition of “employer” and because the plaintiff did not meet the definition of “eligible employee”).²

“We give fresh review to a district court's order to dismiss a claim under Civil Rule 12(b)(6).” Segal v. Fifth Third Bank, N.A., 581 F.3d 305, 308 (6th Cir.2009). In doing so, we “accept all...