UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) KEELY D. PARR, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1718 (PLF) ) MASHAALLAH EBRAHIMIAN, et al., ) ) Defendants. ) __________________________________________)

OPINION

This matter is before the Court on two separate motions to dismiss, one filed by

defendants Timothy Walker and the Walker Group, LLC (“the Walker Defendants”), and the

other by defendants Mashaallah Ebrahamian and Rimcor, LLC (“the Rimcor Defendants”). After

consideration of the parties’ arguments, the relevant legal authorities, and the entire record in this

case, the Court will grant both motions in part and deny them in part.

I. BACKGROUND

Plaintiff Keely D. Parr, proceeding pro se, alleges the following in her amended

complaint: In 2006 defendant Rimcor, LLC, of which defendant Mashaallah Ebrahamian is the

sole owner, Am. Compl. & 4, offered for sale a condominium located at 51 Rhode Island

Avenue, N.W., No. 3, in Washington D.C. (“the Rhode Island Avenue condominium”). Id. & 10.

The condominium was built in 2004 or 2005 when defendant Timothy Walker converted 51

Rhode Island Avenue, at that time a single-family dwelling, into a multi-unit condominium/

apartment building. Id. & 34. Mr. Walker then sold the building to Rimcor in 2005. Id. & 33. In violation of District of Columbia law, Rimcor never obtained a certificate of occupancy

certifying that Rimcor was in compliance with all applicable District laws and was permitted to

develop and market 51 Rhode Island Avenue as a multi-unit dwelling. Id. & 33.

On October 23, 2006, Ms. Parr obtained a Public Offering Statement, prepared by

Mr. Ebrahamian on behalf of Rimcor, issued in connection with the offering of the Rhode Island

Avenue condominium for sale. Am. Compl. & 13. In that Statement Mr. Ebrahamian claimed,

among other things, that “[a]ll renovation and alteration work” to the condominium “was and is

being performed by [Mr. Ebrahimian] in accordance with applicable zoning ordinances, building

codes, housing codes and similar laws affecting the Condominium, or as otherwise approved by

District of Columbia housing inspectors.” Id. & 13. The Statement purported to be accompanied

by four exhibits, including an “engineer=s report,” but none of those exhibits was actually

attached to the Statement. Id. & 14.

On October 25, 2006, Ms. Parr entered into a contract to purchase the Rhode

Island Avenue condominium from Rimcor. Am. Compl. & 10. A few days later, an inspection

of the condominium was conducted by Homes Are Us, Inc., at Ms. Parr’s request. Id. & 16. The

resulting inspection report warned, “‘Side rails to circular stairs off balcony do not conform to

current safety standards. Investigate to determine if units have been inspected by City. Major

Safety Hazard.’” Id. A copy of the inspection report was sent to Mr. Ebrahimian, who

subsequently assured Ms. Parr that “all inspection items had been complied with.” Id. & 17. Mr.

Ebrahimian, however, did not repair the balcony railing, nor did he arrange for the inspection of

the condominium by an agent of the District of Columbia. Id. & 45(b).

2 Settlement of Ms. Parr’s contract to purchase the Rhode Island Avenue

condominium occurred on November 17, 2006, and Ms. Parr took possession of the property.

Am. Compl. & 18. According to Ms. Parr, however, Rimcor did not actually hold title to the

condominium on that date. Id. & 30. It is unclear from the complaint whether Rimcor is alleged

to have subsequently acquired title and arranged its valid transfer to Ms. Parr.

In 2007, Ms. Parr made efforts to obtain various documents related to the

construction and sale of her condominium. She obtained a copy of the building permit that

allowed the conversion of 51 Rhode Island Avenue from a single-family dwelling into a multi-

unit building. Am. Compl. & 34. Before that time, she allegedly was unaware that her

condominium had been built during the conversion of a single-family residence, having assumed

that “she was purchasing a condominium which existed as part of the original [structure located

at 51 Rhode Island Avenue] circa 1901.” Id. & 73.

Ms. Parr also acquired a copy of the “Engineer’s Report” that was listed in the

Public Offering Statement as an exhibit but was not actually attached to the Statement. Am.

Compl. & 35. The Report states that it was prepared by the Walker Group, LLC, and purports to

document the results of a “visual observation of readily accessible systems and components

during a walk through of accessible areas” in the Rhode Island Avenue condominium. Id. & 36.

Ms. Parr filed a complaint in this Court against Timothy Walker, the Walker

Group, LLC, Mashaallah Ebrahimian, and Rimcor, LLC, on September 26, 2007, and then filed

an amended complaint on April 7, 2010. She alleges that the Rimcor Defendants are liable for

breach of contract and breach of the implied duty of good faith and fair dealing, and that all

defendants are liable for fraud, negligence, negligent misrepresentation, and violations of the

3 District of Columbia Condominium Act, D.C. Code '' 42-1901 et seq., and the Consumer

Protection Procedures Act, D.C. Code '' 28-3901, et seq.

II. DISCUSSION

Both the Walker Defendants and the Rimcor Defendants have moved to dismiss

the claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In

addition, Ms. Parr has filed a motion to strike as untimely the Walker Defendants= reply in

support of their motion to dismiss. Because the Court concludes that the untimely filing of the

Walker Defendants= reply has neither prejudiced Ms. Parr nor unduly inconvenienced the Court,

the Court will deny Ms. Parr=s motion and focus its analysis on the defendants= motions to

dismiss the complaint.

A. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal of a

complaint if a plaintiff fails “to state a claim upon which relief can be granted.” FED . R. CIV . P.

12(b)(6). In Bell Atlantic Corp. v. Twombly,

(2007), the Supreme Court noted that

“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim

showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what

the . . . claim is and the grounds upon which it rests[.]’”

at 544 (quoting Conley v. Gibson,

(1957)); see also Erickson v. Pardus,

(2007); Aktieselskabet AF 21

v. Fame Jeans Inc.,

(D.C. Cir. 2008). Although “detailed factual allegations” are

not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of

“entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions” or “a

4 formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly,

; see also Papasan v. Allain,

(1986). The Court stated that there

was no “probability requirement at the pleading stage,” Bell Atlantic Corp. v. Twombly,

, but “something beyond . . . mere possibility . . . must be alleged[.]”

at 557 The

facts alleged in the complaint “must be enough to raise a right to relief above the speculative

level,”

, because Rule 8(a)(2) requires a “showing,” rather than a “blanket assertion,” of

entitlement to relief.

at 555 n.3. The complaint must be sufficient “to state a claim for relief

that is plausible on its face.”

. The Court referred to this newly clarified standard as

“the plausibility standard.”

(abandoning the “no set of facts” language from Conley v.

Gibson).

On a motion to dismiss under Rule 12(b)(6), the Court “must accept as true all of

the factual allegations contained in the complaint.” Erickson v. Pardus,

; see also

Bell Atlantic Corp. v. Twombly,

. The complaint “is construed liberally in the

[plaintiff’s] favor, and [the Court should] grant [the plaintiff] the benefit of all inferences that can

be derived from the facts alleged.” Kowal v. MCI Commc=ns Corp.,

(D.C.

Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those

inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff’s

legal conclusions. See Kowal v. MCI Communications Corp.,

; Browning v.

Clinton,

(D.C. Cir. 2002).

When a plaintiff proceeds pro se as Ms. Parr does here, the Court reviews her

filings under “less stringent standards than formal pleadings [or legal briefs] drafted by lawyers,”

Chandler v. W.E. Welch & Assocs., Inc.,

(D.D.C. 2008) (quoting Haines

5 v. Kerner,

(1972)); see also Atherton v. D.C. Office of the Mayor,

(D.C. Cir. 2009), and, when necessary, “examine[s] other pleadings to understand the

nature and basis of [plaintiff's] pro se claims.” Gray v. Poole,

(D.C. Cir.

2002). The Court has taken note of defendants’ claim that Ms. Parr is a lawyer, see Rimcor

MTD at 2, but, lacking evidence that Ms. Parr is an experienced attorney, will review her filings

using the same standard that would be applied to any pro se plaintiff.

B. Claims Against All Defendants

1. Fraud and Negligent Misrepresentation

Ms. Parr claims that all defendants are liable for fraud and/or negligent

misrepresentation. Under District of Columbia law, a plaintiff states a claim for common law

fraud by alleging “‘(1) a false representation (2) made in reference to a material fact, (3) with

knowledge of its falsity, (4) with the intent to deceive, and (5) an action that is taken in reliance

upon the representation.’” Pearson v. Chung,

(D.C. 2008) (citation

omitted). The elements of a claim of negligent misrepresentation are similar, except that they do

not include the scienter requirements of a fraud claim: the plaintiff must show that the defendant

“made a false statement or omitted a fact that he had a duty to disclose,” that the false statement

or omission “involved a material issue,” and that the plaintiff “reasonably relied upon the false

statement or omission to [her] detriment.” Redmond v. State Farm Ins. Co.,

(D.C. 1999).

Read liberally, as a pro se complaint must be on a motion to dismiss, Ms. Parr’s

complaint alleges that the Rimcor Defendants either negligently or knowingly failed to inform

her that the Rhode Island Avenue condominium was built as a result of the conversion of a

6 single-family dwelling. See Am. Compl. ¶ 73. The complaint also asserts that the Rimcor

Defendants falsely claimed that the structural elements of the condominium were either built in

compliance with the District of Columbia housing code or were approved by a District of

Columbia housing inspector. See id. ¶¶ 16, 17, 45. Ms. Parr entered into the contract to buy the

condominium in reliance on that claim and on the assumption that the condominium was part of

the original construction of the residence located at 51 Rhode Island Ave. Id. & 73. As a result

of the Rimcor Defendants’ misrepresentations, she purchased a condominium that was not as

valuable as she believed it to be. Id.. Those allegations are sufficient to state a claim for fraud,

even under the heightened pleading standards required by Rule 9(b) of the Federal Rules of Civil

Procedure. They also suffice to state a claim for negligent misrepresentation.

Ms. Parr fails, however, to state a claim either for fraud or for negligent

misrepresentation against the Walker Defendants. Her complaint does not allege that the Walker

Defendants made any misrepresentation directly to her. Instead, Ms. Parr theorizes that the

Walker Group, as the general contractor that oversaw the construction involved in converting 51

Rhode Island Avenue into condominiums, must have been the source of the allegedly false

assertion in Rimcor’s Public Offering Statement that “[a]ll renovation and alteration work to 51

Rhode Island Avenue, a Condominium, was and is being performed by [Rimcor] in accordance

with applicable zoning ordinances, building codes, housing codes and similar laws . . . .” Am.

Compl. ¶ 13; see Walker Opp. at 13. For the sake of brevity, the Court will refer to that warranty

contained in the Public Offering Statement as “the POS Declaration.” According to Ms. Parr,

that declaration was false because (1) Rimcor never “file[d] for a Certificate of Occupancy post-

construction,” and (2) the defendants “did not obtain the necessary inspections and final sign off

7 from [the District of Columbia regulatory authorities] prior to offering the condominimum unit

for sale to the Plaintiff.” Walker Opp. at 20.

As a theory of the Walker Defendants’ liability, that argument is unpersuasive.

Even assuming that Ms. Parr’s complaint alleges sufficient facts to permit the inference that the

Walker Defendants did supply the information that rendered the POS Declaration false, Ms. Parr

cannot show that she reasonably relied on that declaration to her detriment. The complaint

contains no allegation that the condominium is less valuable than it otherwise would be, or that

Ms. Parr has been prevented from residing there, because Rimcor failed to obtain a Certificate of

Occupancy. While Ms. Parr does allege that the condominium’s stairway railing is unsafe, the

complaint makes clear that the POS Declaration did not mislead Ms. Parr on that score; Ms. Parr

knew prior to the finalization of the purchase contract for the condominium that the railing did

not conform to applicable standards. See Am. Compl. ¶ 16 (housing inspection company

retained by Ms. Parr prior to closing informed her that the railing did “not conform to current

safety standards”). Once she learned that the railing was unsafe, Ms. Parr went forward with the

purchase of the condominium in reliance, not on the Public Offering Statement, but on Mr.

Ebrahimian’s assurances that the problem had been addressed. Id. ¶ 17. There is no suggestion

in the complaint that Mr. Ebrahimian’s representation was based on any information offered by

the Walker Defendants.

Aside from her arguments based on the Public Offering Statement, Ms. Parr also

contends that the Walker Defendants are liable for fraud or negligent misrepresentation because

they prepared the “Engineer’s Report” that was supposed to accompany the Public Offering

Statement, and that Report was in reality “no more than a [s]urvey.” Walker Opp. at 16. But by

8 Ms. Parr’s own admission, she did not obtain the Report prior to purchasing and taking

possession of the condominium, and so she could not possibly have relied on it in deciding to

enter into the purchase contract with Rimcor. See Am. Compl. ¶¶ 14, 35. Whether the report is

more accurately classified a “survey” does not change that fact. Because there is no discernible

basis in the complaint for claims of fraud or misrepresentation against the Walker Defendants,

those claims will be dismissed.

2. Claims under the District of Columbia Consumer Protection Act

The District of Columbia Consumer Protection Procedures Act (“CPPA”)

provides in relevant part:

It shall be a violation of this chapter, whether or not any consumer is in fact misled, deceived or damaged thereby, for any person to:

(a) represent that goods or services have a source, sponsorship, approval, certification, accessories, characteristics, ingredients, uses, benefits, or quantities that they do not have; . . .

(e) misrepresent as to a material fact which has a tendency to mislead; . . .

(f) fail to state a material fact if such failure tends to mislead; [or]

(h) advertise or offer goods or services without the intent to sell them or without the intent to sell them as advertised or offered; ....

. The allegations that underlie Ms. Parr’s claims under the CPPA are

roughly the same as those providing the basis for her fraud and negligent misrepresentation

9 claims. See Opp. to Rimcor MTD at 7.1 Those allegations state a claim under at least one

subsection of the CPPA against the Rimcor defendants, since Ms. Parr alleges, among other

things, that the Rimcor defendants falsely claimed that the Rhode Island Avenue condominium

had been inspected by appropriate officials and complied with applicable statutes and

regulations. See Am. Compl. ¶¶ 33, 45. The Walker defendants, however, are not alleged to

have made any representation to Ms. Parr and so cannot be held liable for a breach of any

provision of the CPPA, including those quoted above, that prohibits false advertising, misleading

or fraudulent representations, or other deceitful communications aimed at consumers. Because

Ms. Parr identifies no portion of the CPPA that provides for liability based on any action

allegedly taken by the Walker defendants, the CPPA claims against those defendants will be

dismissed.

3. Claims under the District of Columbia Condominium Act

The District of Columbia Condominium Act (“DCCA”) creates a private right of

action against “[a] declarant” who makes “any false or misleading statement in a public offering

statement” or omits “a material fact with respect to the portion of the public offering statement

that he or she prepared or caused to be prepared.”

(d). A “declarant” is

defined as

1 Under some circumstances, a plaintiff may pursue claims for common law fraud and for violations of the CPPA — as well as the District of Columbia Condominium Act — even though the factual allegations underlying the claims are similar or the same. See Fort Lincoln Civi Ass’n, Inc. v. Fort Lincoln New Town Corp.,

(D.C. 2008). The same may not be true of contract and tort claims arising from an identical set of facts. See

. Such duplicative claims need not be dismissed at this early stage in the litigation, however. See District of Columbia v. Chinn,

(D.C. 2003) (duplicative claims should be dismissed before the case is submitted to a jury). 10 . . . any person or group of persons acting in concert who:

(a) Offers to dispose of the person’s or group’s interest in a condominium unit not previously disposed of;

(b) Reserves or succeeds to any special declarant right; or

(c) Applies for registration of the condominium.

§ 42-1901.02(11). In order to sell a condominium, a declarant must issue a “public offering

statement” (“POS”) whose contents are prescribed by statue. See id. § 42-1904.04. The POS

must, among other things, “fully and accurately” “disclose . . . the characteristics of the

condominium and the units therein offered,” including “all unusual and material circumstances

or features affecting the condominium.” Id. § 42-1904.04(a).

The section of Ms. Parr’s complaint alleging claims under the DCCA merely

recites the elements of a cause of action under the statute and would not, in the absence of more

detailed factual allegations elsewhere in the complaint, suffice to state a cognizable claim against

either the Rimcor or the Walker defendants. In the complaint as a whole, however, Ms. Parr

alleges that the Rimcor defendants failed to disclose in the POS that the Rhode Island Avenue

condominium was not originally part of the building in which it is located, and that at least one

structural element of the condominium — the balcony railing — does not conform to applicable

building regulations. See Am. Compl. ¶¶ 16, 45. These allegations suffice to state a claim

against the Rimcor defendants under the DCCA at this very early stage of litigation.

Ms. Parr’s allegations against the Walker defendants, on the other hand, fail to

state a DCCA claim. No allegations in the amended complaint permit an inference that either or

both of the Walker defendants qualify as a “declarant” as that term is defined in the DCCA;

neither defendant offered the condominium for sale or applied for registration of the

11 condominium. Ms. Parr suggests that the Walker defendants may be held liable under the

DCCA because they were “responsible for the conversion of the property,” Opp. to Walker MTD

at 8, but she points to no language in the statute imposing any liability on those who convert

property into condominiums but do not qualify as “declarants.” Consequently, she has failed to

state a claim against the Walker defendants under the DCCA.

4. Negligence

In addition to her claims for fraud, negligent misrepresentation, and violations of

the CPPA and DCCA, Ms. Parr contends that all defendants are liable for common law

negligence. See Am. Compl. ¶¶ 75-80. She asserts that the defendants breached two types of

duties: (1) “a duty to exercise reasonable care in the marketing, selling, advertising and otherwise

promoting of the condominium unit to plaintiff,” id. ¶ 76, and (2) those duties embodied in “the

regulations and codes alleged in th[e] Complaint[, which] establish the applicable standard of

care governing the construction, renovation and the offering of sale of condominium units to the

public.” Id. ¶ 77. The first of those duties also lies at the core of Ms. Parr’s claim for negligent

misrepresentation; any negligence claim based on an alleged violation of that duty is entirely

duplicative of the negligent misrepresentation claim and so is superfluous.

Ms. Parr also appears to attempt to state a claim for negligence per se based on the

second set of duties she alleges; she contends that the “regulations and codes” allegedly violated

by the defendants were intended to protect individuals such as herself from the type of damages

that she has incurred. See Am. Compl. ¶ 77. The factual allegations made by Ms. Parr

specifically in connection with this legal theory are threadbare and conclusory; Ms. Parr does not

identify the regulations or codes allegedly violated by the defendants and specifies as resulting

12 damages only “ownership of a substandard and unsafe condominium.” Id. ¶ 77. Nevertheless,

looking at the complaint as a whole and construing it liberally, as is necessary on a motion to

dismiss for failure to state a claim, the Court notes that Ms. Parr alleges that the condominium’s

balcony railing did “‘not conform to current safety standards’” and was never repaired by the

defendants prior to closing. Id. ¶¶ 16, 45(b).

Neither the Rimcor defendants nor the Walker defendants discuss in their motions to

dismiss whether they may be held liable for creating an unsafe condition --- the improperly

constructed balcony railing --- in the condominium sold to Ms. Parr. There is at least some

authority, although perhaps no authority from the courts of the District of Columbia, for the

proposition that a party responsible for the construction or alteration of a residence may be held

liable for the costs of repairing any unsafe condition that the party negligently creates. See

Council of Co-Owners of Atlantis Condominium, Inc. v. Whiting-Turner Contracting Co.,

(Md. 1986). Because Ms. Parr’s complaint alleges that both the Rimcor and the

Walker defendants were involved in the construction of her condominium, see Am. Compl.

¶¶ 17, 34, it may reasonably be inferred that either or both sets of the defendants caused the

unsafe condition of the balcony railing. Given the possibility that District of Columbia law may

allow for liability in such a situation, and the fact that the defendants have failed to address that

possibility in any way, the Court cannot conclude at this time that the plaintiff’s amended

complaint fails to state a claim for negligence against the defendants.

C. Claims Against the Rimcor Defendants Only

Ms. Parr also alleges that the Rimcor defendants are liable for breach of contract

and breach of the implied duty of good faith and fair dealing. See Am. Compl. ¶¶ 55-64. Those

13 theories of liability are based on the same set of allegations underlying Ms. Parr’s other claims —

that the Rhode Island Avenue condominium was not in the condition that the Rimcor defendants

claimed during the sale process, see id. ¶ 58(b), and that the Rimcor defendants had not complied

with various administrative requirements related to the conversion and sale of condominiums.

See id. ¶ 58(a), (e).

With respect to the breach of contract claim, the Rimcor defendants contend that

the contract for the sale of the condominium to Ms. Parr ceased to have any legal significance

once the deed was conveyed to her. See Rimcor MTD at 7-8. But while it is true that the

obligations imposed on a seller by a real estate sale contract are generally “satisfied by the

delivery . . . and acceptance . . . of a deed to the property,” such acceptance “does not terminate

any covenants or stipulations in the contract which are not in their nature satisfied by delivery of

an instrument whose purpose is to transfer title to the property.” Haviland v. Dawson,

(D.C. 1965). Ms. Parr contends that various false warranties about the condition of the

condominium were made in statements incorporated into the sale contract. See Opp. to Rimcor

MTD at 10-12. At this stage in these proceedings the Court accepts those allegations as true and

so cannot draw any conclusions about the extent to which the contractual obligations of the

Rimcor defendants ended upon conveyance of the deed to Ms. Parr.

Ms. Parr further claims that the Rimcor defendants are liable for breach of the

implied warranty of good faith and fair dealing, which is included by law in “all contracts” and

“means that neither party shall do anything which will have the effect of destroying or injuring

the right of the other party to receive the fruits of the contract.” Murray v. Wells Fargo Home

Mortg.,

(D.C. 2008) (internal quotation marks and citations omitted). Ms.

14 Parr alleges that the Rimcor defendants breached this duty “by affirmatively mispresenting and

withholding from [her] the true nature of” the Rhode Island Avenue condominium. Am. Compl.

¶ 63. Such misrepresentations, however, are alleged to have occurred prior to the formation of

the sale contract, see id. ¶¶ 13, 17, and so would constitute, if anything, bad faith in negotiation,

which is not a violation of the implied contractual duty of good faith and fair dealing. See

RESTATEMENT (SECOND ) OF CONTRACTS § 205(c). Ms. Parr’s claim for violation of that duty

therefore will be dismissed.

The Court notes that the Rimcor defendants also assert that Ms. Parr’s claims are

deficient because she simultaneously requests contractual and extracontractual remedies. See

Rimcor MTD at 10-11. But while Ms. Parr certainly may not recover damages under such

mutually exclusive theories, she is not required at this point in the litigation to choose between

them. See Modern Mgmt. Co. v. Wilson,

, 44 n.10 (D.C. 2010) (“a plaintiff is not

required to elect between . . . alternative claims before the case is submitted to the jury” (internal

quotation marks and citation omitted)).

Finally, the Rimcor defendants challenge Ms. Parr’s claims for punitive damages.

See Rimcor MTD at 11. As Ms. Parr has stated a claim for fraud, an intentional tort, her request

for punitive damages will not be struck. See Breezevale Ltd. v. Dickinson,

(D.C. 2005) (punitive damages “permissible” for “a classic intentional tort”).

III. CONCLUSION

For the foregoing reasons, the Court will grant in part and deny in part both

motions seeking to dismiss the plaintiff’s claims. Plaintiff’s claims for violations of the CPPA

(Count I) and DCCA (Count II) and for negligent misrepresentation (Count VII) and fraud

15 (Count V) will be dismissed as to the Walker defendants. Plaintiff’s claim for breach of the

implied duty of good faith and fair dealing (Count IV) will also be dismissed. An Order

consistent with this Opinion shall issue this same day.

SO ORDERED.

/s/_______________________________ PAUL L. FRIEDMAN United States District Judge DATE: March 31, 2011

16