Sipes ex rel. Slaughter v. Russell

• Decision Date: 12 January 2000
• Docket Number: No. Civ.A. 99-2613-KVH.,Civ.A. 99-2613-KVH.
• Citation: 89 F.Supp.2d 1199
• Parties: Zachary SIPES, By and Through his natural mother and next friend Lori SLAUGHTER, and Lori Slaughter, Plaintiffs, v. Kenneth J. RUSSELL, Defendant.
• Court: U.S. District Court — District of Kansas

89 F.Supp.2d 1199

Zachary SIPES, By and Through his natural mother and next friend Lori SLAUGHTER, and Lori Slaughter, Plaintiffs, v.Kenneth J. RUSSELL, Defendant.

No. Civ.A. 99-2613-KVH.

United States District Court, D. Kansas.

January 12, 2000.

David M. Bryan, Overland Park, KS, for Plaintiff.

Jill Frost, Franke & Schultz, P.C., Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Lori Slaughter and Zachary Sipes, by and though his natural mother and next friend, bring suit against Kenneth J. Russell.Plaintiffs allege violation of the Residential Lead-Based Paint Hazard Reduction Act of 1992 (RLPHRA), 42 U.S.C. § 4851 et seq., the Toxic Substance Control Act (TSCA), 15 U.S.C. § 2689, and negligence.This matter comes before the Court on Defendant's Motion to Dismiss For Lack Of Subject Matter Jurisdiction And For Failure To State A Claim Upon Which Relief Can Be Granted(Doc. # 5) filed June 14, 1999.Defendant seeks dismissal of plaintiffs' complaint for lack of subject matter jurisdiction under Rule 12(h)(3) and failure to state a claim under Rule 12(b)(6), Fed.R.Civ.P.For the reasons set forth below, the Court finds that defendant's motion should be sustained.

Standards of Review

I.Rule 12(h)(3)Motion to Dismiss Standards

Federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so.SeeCastaneda v. I.N.S.,23 F.3d 1576, 1580(10th Cir.1994);Fitzgerald v. City of Ottawa Kan.,975 F.Supp. 1402, 1403(D.Kan.1997).A court lacking jurisdiction "must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is absent."Basso v. Utah Power & Light Co.,495 F.2d 906, 909(10th Cir.1974);see alsoFed.R.Civ.P. 12(h)(3).The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper.SeeArmstrong v. Goldblatt Tool Co.,609 F.Supp. 736, 737(D.Kan.1985);see alsoFitzgerald,975 F.Supp. at 1403.When defendant challenges federal jurisdiction, plaintiffs bear the burden of showing why the case should not be dismissed.SeeJensen v. Johnson County Youth Baseball League,838 F.Supp. 1437, 1439-40(D.Kan.1993).

II.Rule 12(b)(6) Motion to Dismiss Standards

A 12(b)(6) motion should not be granted unless it is beyond doubt that plaintiffs can prove no set of facts in support of their claim which would entitle them to relief or when an issue of law is dispositive.SeeGFF Corp. v. Associated Wholesale Grocers, Inc.,130 F.3d 1381, 1384(10th Cir.1997);Neitzke v. Williams,490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338(1989).The Court must assume as true all well pleaded facts in plaintiffs' complaint and view them in the light most favorable to plaintiffs.SeeZinermon v. Burch,494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100(1990);see alsoSwanson v. Bixler,750 F.2d 810, 813(10th Cir.1984).

The issue in reviewing the sufficiency of plaintiffs' complaint is not whether they will prevail, but whether they are entitled to offer evidence to support their claims.SeeScheuer v. Rhodes,416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90(1974).The Court may not dismiss a cause of action for failure to state a claim unless it appears beyond a doubt that plaintiffs can prove no set of facts in support of their theory of recovery that would entitle them to relief.SeeConley v. Gibson,355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80(1957);see alsoJacobs, Visconsi & Jacobs, Co. v. City of Lawrence, Kan.,927 F.2d 1111, 1115(10th Cir.1991).Although plaintiffs need not precisely state each element of their claims, they must plead minimal factual allegations on those material elements that must be proved.SeeHall v. Bellmon,935 F.2d 1106, 1110(10th Cir.1991).

Factual Background

On or about June 15, 1996, plaintiffLori Slaughter entered into a contract to lease residential property at 8716 West 49th Terrace, Kansas City, Kansas beginning July 1, 1996.Defendant, the lessor, did not disclose the existence of lead-based paints in the home before or after the parties executed the lease.After plaintiffs took possession of the property, Ms. Slaughter noticed a change in the behavior of her son, Zachary Sipes.In June 1997, she sought medical attention for Zachary.Nearly eight months later, in October of 1998, physicians determined that Zachary had toxic levels of lead in his system from chewing on painted wood surfaces, causing severe and permanent injuries including brain damage.

Plaintiffs bring suit pursuant to 28 U.S.C. § 1331, alleging that defendant violated RLPHRA, 42 U.S.C. § 4852d(b)(3)(4)(5), TSCA, 15 U.S.C. § 2689, and federal regulations, 40 C.F.R. §§ 745.100 et seq., by failing to disclose the presence of lead.Plaintiffs also bring a state law negligence claim.

Analysis

Defendant argues that the Court should dismiss plaintiffs' RLPHRA claim for lack of subject matter jurisdiction because plaintiffs were not the intended beneficiaries of the statute.Alternatively, defendant alleges that plaintiffs have failed to state a claim on which relief can be granted because the applicable RLPHRA regulations were not in effect when Ms. Slaughter leased the premises.Defendant argues that the regulations were not effective until September 6 or December 6, 1996, and that he therefore owed no duty of disclosure.Plaintiffs respond that the RLPHRA regulations were effective as of October 28, 1995, pursuant to 42 U.S.C. § 4852d(d).Defendant further argues that the Court lacks subject matter jurisdiction over any TSCA claim because TSCA authorizes injunctive relief, but not a private right of action for compensatory damages.

I.RLPHRA

A.Subject Matter Jurisdiction

Defendant asks the Court to dismiss plaintiffs' RLPHRA claim for lack of subject matter jurisdiction because plaintiffs were not the intended beneficiaries of the Act.¹Plaintiffs assert that the Court has subject matter jurisdiction over its RLPHRA claim under 28 U.S.C. § 1331.The Court agrees with the plaintiffs and holds that subject matter jurisdiction exists.

The probability of plaintiffs' success on the merits of their RLPHRA claim has no bearing on the existence of subject matter jurisdiction.SeeBell v. Hood,327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939(1946).A complaint that appears to state a cause of action under a federal statute should be dismissed only when the claim is clearly immaterial or is wholly insubstantial and frivolous.Seeid. at 682-83, 66 S.Ct. 773.To ascertain whether plaintiffs' claims are immaterial or insubstantial, the Court must examine the federal statute in question to decide if plaintiffs have a cause of action under the statute.SeeAdams v. Republic Steel Corp.,621 F.Supp. 370, 375(W.D.Tenn.1985).In 42 U.S.C. § 4852d(b)(3) & (4), RLPHRA expressly creates a private cause of action and explicitly provides that:

(3) Any person who knowingly violates any provision of this section shall be jointly and severally liable to the purchaser or lessee in an amount equal to 3 times the amount of damages incurred by such individual.

(4) In any civil action brought for damages pursuant to paragraph (3), the appropriate court may award court costs to the party commencing such action, together with reasonable attorney fees and any expert witness fees, if that party prevails.

See also40 C.F.R. § 745.100;John P. Fensler & Leonard A. Bernstein, Lead Poisoning at Home: New Federal Disclosure Duties, 26 RealEst. L.J. 7, 17-18(1997)(commenting that statute creates private right of action).The plain language of the statute and the regulation provide a private cause of action for compensatory damages, court costs, attorney fees and witness fees.Therefore, contrary to defendant's assertion, RLPHRA and its regulations provide private citizens a cause of action.

The Court notes but declines to follow Santiago ex rel. Muniz v. Hernandez,53 F.Supp.2d 264(E.D.N.Y.1999).In Santiago, an action under 42 U.S.C. § 1983, an apartment resident sued the City of New York and an apartment owner for failure to cure lead-based paint hazards in her home under the Housing and Community Development Act (HCDA), 42 U.S.C. § 5301 et seq., the Lead-Based Paint Poisoning and Prevention Act (LPPPA), 42 U.S.C. § 4822 et. seq., andRLPHRA.Id. at 265-66.The Santiago court considered the goals of RLPHRA and applied an implicit language analysis by looking at both Cort v. Ash,422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26(1975), andBlessing v. Freestone,520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569(1997), to decide whether RLPHRA implicitly gave plaintiff a private cause of action against the government and whether RLPHRA provided plaintiff a federally protected right.²Id. at 272.It found that RLPHRA was "intended to benefit the general public, rather than a special class of persons" and held that plaintiffs did not have a private right of action against the City.Id.Because the Santiago court analyzed whether a private citizen could bring a RLPHRA cause of action against the government, which subsidized the apartment owner, it did not consider the explicit language of RLPHRA and its regulations, 40 C.F.R. § 745.100 et seq., which provides a private cause of action.See42 U.S.C. § 4852d(b)(3) & (4).

B.Failure to State a Claim

In order for plaintiffs to recover under 42 U.S.C. § 4852dand40C.F.R. 745.100 et seq., plaintiffs must show that (1) Ms. Slaughter was a lessee, (2)defendant was a lessor who failed to make the proper disclosures under 40 C.F.R. § 745.107, (3) the leased property was target housing, and (4) the contract was signed after the effective dates in 40 C.F.R. § 745.102.See40 C.F.R. § 745.100 et seq.The main element in dispute is the effective date of the regulations.

Defendant argues that under 40 C.F.R. § 745.102, the regulations did not take effect until September 6 or December 6, 1996, after Ms. Slaughter entered into the...