Gladysz v. Desmarais et a l . CV-02-208-B 03/17/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kenneth Gladysz, Individually and as Parent and Next Friend of Ashley Gladysz and Kenneth Gladysz, Jr.

v. Civil No. 02-208-B Opinion No.

Phillip Desmarais, Individually and as Trustee of Guumeez-Hill Trust and Guumeez-Hill Trust, et a l .

MEMORANDUM AND ORDER

Kenneth Gladysz, ("Gladysz"), individually and as parent and

next friend of Ashley Gladysz ("Ashley") and Kenneth Gladysz, Jr.

("Kenneth Jr."), brings this civil action against multiple

persons and entities with varying interests in Apartment 1 at 251

Pearl Street in Manchester, New Hampshire (collectively known as

"defendants"). Along with multiple state law claims, Gladysz

alleges the defendants violated the Residential Lead-Based Paint

Hazard Reduction Act of 1992 ("RLPHRA"),

, et

seg. (1995 & Supp. 2002). Gladysz argues that the defendants did not comply with RLPHRA's lead disclosure requirements.

The defendants move to dismiss Gladysz's RLPHRA claim.1

(Doc. No. 40). The defendants argue that Gladysz fails to state

a claim upon which relief can be granted under RLPHRA because the

civil liability provision in RLPHRA limits recovery to

"purchasers or lessees." 42 U.S.C. § 4852d(b)(3). Gladysz

argues that I should construe the civil liability provision to

permit Gladysz to recover individually and on behalf of Ashley

and Kenneth, Jr. (Doc. No. 42). For the reasons set forth

below, I grant the defendants motion to dismiss and decline to

exercise supplemental jurisdiction over Gladsyz's remaining state

law claims.

(c) (3) .

I. BACKGROUND

In October of 1991, Madelyn Gladysz, the mother of Kenneth

Gladysz, Sr., entered in a lease with Ronald Dupont for the

occupancy of Apartment 1 at 251 Pearl Street in Manchester, New

1 The defendants also move to dismiss Gladysz's claim based on the New Hampshire Consumer Protection Act, N.H. Rev. Stat. Ann. ch. 358-A (1995 & Supp. 2002) . I address only Gladysz's RLPHRA claim.

- 2 - Hampshire. Madelyn Gladysz lived in the three-bedroom apartment

with her three sons: Kenneth Sr., Robert and Stephen. In 1994,

Guumeez-Hill Trust purchased the building in which Apartment 1 is

located and continues to own the property. Also during this time

period. Red Oak Property Management ("Red Oak") began to manage

the apartment building.

In 1995, Angela Beuchesne, Kenneth Gladysz's girlfriend,

moved into the apartment with the Gladysz family. Angela

Beuchesne and Gladysz married in 1997, and their daughter,

Ashley, was born later that year. In July 1998, Kenneth Glasysz,

Jr. was born. At all relevant times, Kenneth Gladysz, Angela,

and Ashley and Kenneth, Jr. resided in Apartment 1 leased by

Madelyn Gladysz.

In October 1998, Red Oak sent Madelyn Gladysz a lease

renewal agreement. On October 18, 1998, Madelyn Gladysz signed

the renewal agreement. On multiple occasions during this time,

Kenneth Sr. went to Red Oak to pay the rent for Apartment 1. In

addition. Red Oak employees were aware that children lived "in

the premises."

In April 1999, Ashley and Kenneth underwent blood tests.

The results indicated that both Ashley and Kenneth had elevated

- 3 - levels of lead in their blood. Later that month, the New

Hampshire Office of Community and Public Health Childhood Lead

Poisoning Program issued an Order of Lead Poisoning Reduction for

Apartment 1.

II. STANDARD OF REVIEW

_____ When I consider a motion to dismiss for failure to state a

claim, I must accept the plaintiff's well-plead factual

allegations as true, "draw all reasonable inferences [from the

complaint] in the plaintiff's favor and determine whether the

complaint, so read, sets forth facts sufficient to justify

recovery on any cognizable theory." Martin v. Applied Cellular

Tech., Inc.,

(1st Cir. 2002) . Dismissal is

appropriate only if "it clearly appears, according to the facts

alleged, that the plaintiff cannot recover on any viable theory."

Lanqadinos v. American Airlines, Inc.,

(1st Cir.

2000) (guotation omitted). Despite the liberal pleading

reguirements established by the federal rules, I need not accept

subjective characterizations, bald assertions, or unsubstantiated

conclusions. See Correa-Martinez v. Arrillaqa-Belendez, 903 F.2d

- 4 - 49, 52-53 (1st Cir. 1990); Dewev v. Univ. of N.H.,

(1st Cir. 1982).

III. ANALYSIS

A. Statutory and Regulatory Background

Section 4852d of the RLPHRA is entitled "disclosure of

information concerning lead upon transfer of residential

p r o p e r t y The section directs the Secretary of the Department

of Housing and Urban Development ("HUD") and the Administrator of

the Environmental Protection Agency ("EPA") to promulgate

regulations for the disclosure of lead-based paint hazards in

target housing which is offered for sale or lease. 42 U.S.C.

§ 4852d(a)(1). In addition, the section states that "the

regulations shall reguire that, before the purchaser or lessee is

obligated under any contract to purchase or lease the housing,

the seller or lessor shall (A) provide the purchaser or lessee

with a lead hazard information pamphlet . . .; (B) disclose to

the purchaser or lessee the presence of any known . . . lead-

based hazards, in such housing . . .; and (C) permit the

purchaser a 10-day period . . . to conduct a risk assessment or

- 5 - inspection for the presence of lead-based paint hazards. Id.

The section requires every contract for the purchase and sale of

any interest in target housing must contain a warning statement

and further provides the exact content of the statement. 42

U.S.C. §§ 4852d(a)(2), (3). Section 4852d also provides penalties

for violations of § 4852d, including civil liability.

Specifically, § 4852(b)(3) provides "any person who knowingly

violates the provisions 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."

(emphasis added). The HUD and EPA regulations implementing the

provisions in

§ 4852d, define lessee to mean "any entity that enters into an

agreement to lease, rent or sublease target housing, including

but not limited to individuals, partnerships, corporations,

trusts, government agencies, housing agencies, Indian tribes and

nonprofit organizations."

(2002);

(2002).

B. Gladysz's Claim

Gladysz brings his RLPHRA claim under § 4852d(b)(3). The

defendants move to dismiss Gladysz's RLPHRA claim arguing that

- 6 - neither Gladysz nor Ashley or Kenneth Jr are "purchaser[s] or

lessee[s]" and therefore they are not eligible for relief under §

4852d(b)(3). Gladysz argues that he does in fact state a claim

for relief under § 4852d despite the "purchaser or lessee"

limitation in the civil liability provision. 42 U.S.C. §

4852d(b)(3). Gladysz does not argue that he (or Ashley or

Kenneth, Jr.) should somehow be construed as a "lessee," instead,

he argues that I should not interpret § 4852d(b)(3) "narrowly"

and should instead consider the overarching purposes of the

statute in construing it's provisions. He argues that since one

of the major purposes of RLPHRA is to protect children from the

hazards of lead-based paint, I should allow his RLPHRA claim.

Gladysz's argument shows a disregard for the principles of

statutory interpretation. If the meaning of a statute is clear,

I must enforce that meaning. Bryson v. Shumwav,

, 84

(1st Cir. 2002) (citing Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc.,

(1984)). Where the language of a

statute is unambiguous, I need not look to outside sources in

interpreting it's terms. See Chevron,

. Here,

§ 4852d(b)(3) clearly limits recovery to a "purchaser or lessee."

Furthermore, the purpose § 4852d is to ensure the "disclosure of

- 7 - information concerning lead upon transfer of residential

property." 42 U.S.C. § 4852d. The civil liability provision in

RLPHRA is within the "disclosure" section and as such, it is both

logical and reasonable to read the civil liability to cover only

purchasers or lessees who were deprived of the reguired notice of

lead hazards "upon the transfer of residential property." Id.

The administrative interpretation of § 4852d only confirms

the correctness of limiting recovery to purchasers or lessees.

The EPA and HUD have defined "lessee" narrowly to mean "any

entity that enters into an agreement to lease . . . ." See

;

. I am reguired "to respect

statutory interpretation of the federal administrative agenc[ies]

given that interpretative task, unless the interpretation is

unreasonable." Bryson, 308 F.3d at 87. The EPA's and HUD's

interpretation is reasonable given the fact that the purpose of §

4852d is to ensure lessees are given notice of any lead hazard

prior to being bound by a lease. As such, the plain meaning and

administrative interpretation of § 4852d(b)(3) governs and I

reject Gladysz's argument that I look outside these sources in

construing the RLPHRA civil liability provision. Because neither Gladysz, nor Ashley or Kenneth, Jr. are

lessees of Apartment 1 at 251 Pearl Street, I grant the

defendants motion to dismiss as to Gladysz's RLPHRA claim.

IV. CONCLUSION

I grant the defendants' motion to dismiss as to the RLPHRA

claim asserted against them. (Doc. No. 40). I also deny

Gladysz's motion for summary judgment as moot. (Doc. No. 43).

The only claims that remain pending in this case are claims

based on state law. I decline to exercise supplemental

jurisdiction over plaintiff's state law claims. Instead, I

dismiss Gladysz's state law claims without prejudice to his right

to pursue them in state court. The Clerk of Court shall enter

judgment accordingly.

SO ORDERED.

Paul Barbadoro Chief Judge

March 17, 2003

cc: Thomas Craig, Esg. Gary M. Burt, Esg. R. Matthew Cairns, Esg. Donald J. Perrault, Esg. - 10 -