Opinion
1784CV04215BLS2
08-01-2018
Claire HENNESSY, on Behalf of Herself and All Others Similarly Situated v. BROOKDALE SENIOR LIVING COMMUNITIES, INC. et al.
MEMORANDUM AND ORDER DENY DEFENDANTS’ MOTIONS TO DISMISS OR TO STRIKE CLASS ALLEGATIONS AND TO REPORT THE MATTER
Kenneth W. Salinger, Justice of the Superior Court
Claire Hennessy lives in an assisted living facility in Dedham, Massachusetts. She has lived there since 2014, when she entered into a "Resident Agreement" with Emeritus Corporation, which at that time operated the facility. Brookdale Senior Living Communications, Inc., now manages the facility.
Hennessy claims that Emeritus violated Massachusetts residential landlord/tenant law by charging her a $4, 250 "community fee" at the inception of her lease even though such a fee is not authorized by G.L.c. 186, § 15B(1)(b), and that Brookdale received Hennessey’s community fee payment when it acquired or began to manage the facility. She asserts personal and putative class claims under G.L.c. 186 and c. 93A and for negligent misrepresentation, unjust enrichment, and declaratory judgment with respect to this community fee.
Hennessy also claims that Brookdale has been charging her for services that it never provided. She asserts personal and putative class claims against Brookdale for negligent misrepresentation, fraud, and unjust enrichment, and also under c. 93A, with respect to the alleged overcharges.
Defendants have moved to dismiss all claims or, in the alternative, to strike the class allegations. The Court will dismiss the claim of intentional fraud but otherwise deny this motion. Defendants have also asked the Court to report its decision for interlocutory appellate review. The Court will deny that request.
1. Motion to Dismiss Claims
Defendants ask the Court to dismiss all of Hennessey’s claims pursuant to Mass.R.Civ.P. 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege facts that, if true, would "plausibly suggest[ ] ... an entitlement to relief." Lopez v. Commonwealth, 463 Mass. 696, 701 (2012), quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). For the purpose of deciding the pending motions to dismiss, the Court must assume that the factual allegations in the complaint and any reasonable inferences that may be drawn in Plaintiffs’ favor from the facts alleged are true. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011). In so doing, however, it must "look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief." Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, 473 Mass. 336, 339 (2015), quoting Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
1.1. Community Fee Claims
Hennessey states viable claims that it was illegal for Emeritus to charge and for Brookdale to retain a $4, 250 "community fee" that was used at least in part to prepare her apartment for occupancy. General Laws c. 186, § 15B, defines some of "the rights and duties of a residential landlord and tenant." Taylor v. Beaudry, 82 Mass.App.Ct. 105, 116 (2012). It provides in part that no lessor of residential real property "may require a tenant or prospective tenant," at or before commencement of a residential tenancy, "to pay any amount in excess of" first and last months’ rent, a security deposit equal to first month’s rent, and a charge for the cost of installing a new lock and providing a key. See G.L.c. 186, § 15B(1)(b).
The resident agreement between Hennessy and Defendants is in part a residential lease and is therefore, to that extent, subject to § 15B. Under Massachusetts common law, "[a] tenancy at will arises out of an agreement, express or implied, by which one uses and occupies the premises of another for a consideration-usually the payment of rent." Williams v. Seder, 306 Mass. 134, 136 (1940). The tenancy is residential, of course, if it involves the lease of residential property. The contract in this case gives Hennessy the legal right to live in an apartment within the residential facility, in exchange for paying a monthly fee. It is a month-to-month lease of an apartment. Though the landlord has the right to move Hennessy to a substitute apartment, the contract expressly gives Hennessy the right to exclusive occupancy of whichever apartment she is living in, in consideration for her monthly payment. The "resident agreement" therefore creates a residential tenancy and is subject to § 15B.
The Court respectfully disagrees with the contrary ruling in Ryan v. Maryann Morse Healthcare Corp., d/b/a Heritage at Framingham, Middlesex Superior Court no. 1681CV02433-A (January 9, 2018) (Barry-Smith, J.).
Since Hennessy contracted to live in an assisted living facility, and not just any residential apartment, by law Defendants were required to offer and provide a variety of personal care services in addition to Hennessy’s right to exclusive occupancy of a residential apartment. See G.L.c. 19D, § 2(v) & § 10(a). The Legislature enacted c. 19D to establish minimum standards that all "assisted living residences" must meet in providing support and services in additional to residential tenancies.
Defendants argue that c. 19D supersedes c. 186, and exempts assisted living facilities from complying with any of the statutory obligations imposed upon other residential landlords, because c. 19D is a more specific statute and was enacted more recently than c. 186. The Court is not convinced.
"[A] statute is not to be deemed to repeal or supersede a prior statute in whole or in part in the absence of express words to that effect or of clear implication." George v. National Water Main Cleaning Co., 477 Mass. 371, 378 (2017), quoting Commonwealth v. Hayes, 372 Mass. 505, 512 (1977). "Where two statutes appear to be in conflict, we do not mechanically determine ‘that the more "recent" or more "specific" statute ... trumps the other.’" Id., quoting Commonwealth v. Harris, 443 Mass. 714, 725 (2005). "Instead, we ‘endeavor to harmonize the two statutes so that the policies underlying both may be honored.’" Id., quoting Harris, supra; accord, e.g., Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Board, 457 Mass. 663, 673 (2010).
Nothing in c. 19D expressly exempts assisted living facilities from the requirements imposed by c. 186. Although the Legislature expressly exempted such facilities from having to comply with certain statutes that regulate health care facilities and from any zoning requirement that cluster developments obtain a special permit, it did not exempt such facilities from the fee limitations and security deposit requirements that apply to all residential tenancies. See. G.L.c. 19D, § 18. The Court may not "read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose." Provencal v. Commonwealth Health Ins. Connector Auth., 456 Mass. 506, 516 (2010), quoting General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 803 (1999).
Nor does c. 19D implicitly supersede c. 186. Assisted living facilities can easily comply with both statutory schemes, providing supportive services in accord with c. 19D to a resident whose tenancy is also governed by § 15B. And the Legislature directed that assisted living facilities "shall meet the requirements of all applicable federal and state laws and regulations[.]" G.L.c. 19D, § 16. This makes clear that c. 19D is not intended to be an exhaustive regulatory scheme that governs all aspects of assisted living operations. And it also makes clear that Defendants must comply with all laws that govern residential tenancies to the extent they apply to their facilities.
Defendants argue that the security deposit and other requirements of G.L.c. 186, § 15B, cannot be applied to assisted living facilities because that would make one small part of G.L.c. 19D superfluous. In establishing the statutory framework that governs assisted living facilities, the Legislature provided that no resident of such a facility may "be evicted ... except in accordance with the provisions of landlord tenant law as established by" G.L.c. 189 or c. 239. See G.L.c. 19D, § 9(a)(18). Defendants assert that this reference to the eviction protections of c. 186 would be unnecessary and therefore superfluous if all of the protections afforded to residential tenants under c. 186 applied in assisted living facilities. Cf. Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 477 (2012) (courts should try to "interpret a statute to give effect to all its provisions, so that no part will be inoperative or superfluous") (quoting Connors v. Annino, 460 Mass. 790, 796 (2011) (internal quotation marks omitted)).
Although Defendants are correct that the eviction provision in c. 19D, § 9(a)(18), was in a technical sense redundant and unnecessary, the Legislature’s decision to clarify that the eviction provisions of c. 186 protect residents of assisted living facilities does not mean that we can ignore the plain meaning of c. 186, § 15B. "Redundancies across statutes are not unusual events in drafting, and so long as there is no ‘positive repugnancy’ between two laws, ... a court must give effect to both." Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253 (1992), quoting Wood v. United States, 41 U.S. (16 Pet.) 342, 363 (1842). Statutory "provisions that, although ‘technically unnecessary, ’ are sometimes ‘inserted out of an abundance of caution-a drafting imprecision venerable enough to have left its mark on legal Latin (ex abundanti cautela).’" Smith v. City of Jackson, Miss., 544 U.S. 228, 252 (2005) (Scalia, J., concurring in part and concurring in the judgment), quoting Fort Stewart Schools v. Federal Labor Relations Auth., 495 U.S. 641, 646 (1990); see, e.g., Commonwealth v. Hughes, 364 Mass. 426, 430 n.4 (1973); Braman v. Perry, 29 Mass. (12 Pick.) 118, 123-24 (1831).
A statutory phrase is not superfluous if the legislature "simply intended to remove any doubt" about an issue, or make sure that a legal rule is not overlooked by repeating it in several relevant statutes. Ali v. Federal Bureau of Prisons, 552 U.S. 214, 226 (2008); accord Marx v. General Revenue Corp., 568 U.S. 371, 383-84 (2013). The Legislature "could sensibly have seen some practical value in the redundancy." Corley v. United States, 556 U.S. 303, 325 (2009), quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 445-46 (1995) (Souter, J., dissenting).
It would not be appropriate to ignore the plain meaning and scope of G.L.c. 186, § 15B, just to give G.L.c. 19D, § 9(a)(18) some independent meaning. Like all statutory canons of construction, the principal that statutes should not be read in a manner that makes some provision superfluous is "no more than [a] rule of thumb." Connecticut Nat. Bank, 503 U.S. at 253. When "interpreting a statute a court should always turn first to one, cardinal canon before all others.... [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Id. at 253-54.
Defendants also argue that § 9(a)(18) implicates a second maxim of statutory instruction, that "a statutory expression of one thing is an implied exclusion of other things omitted from the statute." See, e.g., Construction Industries of Massachusetts v. Commissioner of Labor and Industries, 406 Mass. 162, 169 (1989). They say that the express statement in c. 19D that the c. 186 eviction provisions apply to residents in assisted living facilities necessarily implies that no other provisions of c. 186 apply.
In days of old courts referred to this principal using the Latin equivalent, "expressio unius est exclusion alterius."
This argument is unavailing. This maxim "should not be applied where to do so would frustrate the general beneficial purpose of the legislation." Bank of America, N.A. v. Rosa, 466 Mass. 613, 619-20 (2013). The statutory construction favored by Defendants would frustrate the general beneficial purpose of G.L.c. 186, § 15B.
Finally, Defendants’ insistence that G.L.c. 186, § 15B, could not possibly apply here, because it limits a landlord’s right to enter leased residential premises and thus would prevent an assisted living facility from providing personal care services, is also unavailing. Nothing in § 15B bars a tenant from contracting with a landlord to come to the apartment to provide housekeeping services, meals, and other personal care services in addition to providing a residential tenancy. If a tenant did so, the landlord would have a contractual right and obligation to enter the apartment. Doing so would not violate § 15B. In any case, if there were any need to do so one could easily harmonize the two statutes. If in fact § 15B somehow barred a landlord from providing personal care services (which it does not), that part of the statute would not apply to facilities governed by § 19D that are authorized and indeed required to offer and provide such services.
1.2. Negligent Misrepresentation and Fraud Claims
Defendant seek dismissal of the two claims for negligent misrepresentation (Counts III and V) and the one claim for intentional fraud (Count VI) on the ground that they are not pleaded with sufficient particularity.
Under Mass.R.Civ.P. 9(b), a plaintiff must "at a minimum" support their claim for fraud by specifically alleging "the identity of the person(s) making the" allegedly fraudulent "representation, the contents of the misrepresentation, and where and when it took place," and must also "specify the materiality of the misrepresentation, [his] reliance thereon, and resulting harm." Equipment & Systems for Industry, Inc. v. NorthMeadows Constr. Co., Inc., 59 Mass.App.Ct. 931, 931-32 (2003) (rescript).
The claims for negligent misrepresentation are not subject to Rule 9(b) and need not be stated with particularity. See, e.g., DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 798 n.8 (2013) (construing complaint that alleged "material misrepresentation" as stating claim for negligent misrepresentation because "fraud has not been pleaded with sufficient particularity to state a claim for intentional or reckless misrepresentation").
In contrast, the claim against Brookdale for intentional fraud must be dismissed without prejudice because Hennessy fails to identify any fraudulent statements with particularity. See Equipment & Systems for Industry, 59 Mass.App.Ct. at 931-32 (intentional fraud claim must be stated with particularity). The complaint does not specify what statements by Brookdale were allegedly false, who made them, when they were made, or any of the other details required by Rule 9(b). Indeed, in her opposition memorandum Hennessy did not state any reason why her fraud claim could survive dismissal.
1.3. Unjust Enrichment Claims
Defendants correctly note that Hennessey’s claims for unjust enrichment in Counts IV and VII are essentially duplicative of her statutory claims for recovery under G.L.c. 186 and G.L.c. 93A. If Hennessey has an "adequate remedy at law" under either statute then she will not also be able to recover under an unjust enrichment theory. See Santagate v. Tower, 64 Mass.App.Ct. 324, 329 (2005).
But Hennessey is entitled to seek relief and assert claims based on different legal theories "in the alternative." Mass.R.Civ.P. 8(a). "A party may ... state as many separate claims or defenses as he has regardless of consistency and whether based on legal or equitable grounds." Mass.R.Civ.P. 8(e)(2).
It would therefore be inappropriate to dismiss her unjust enrichment claim as duplicative because that would "presuppose" that she can prevail on her other claims. Zelby Holdings, Inc. v. Videogenix, Inc., 92 Mass.App.Ct. 86, 93 (2017) (reversing dismissal). Although a plaintiff cannot recover damages for the same alleged injury under a legal theory and also under an equitable claim for unjust enrichment, "it is accepted practice to pursue both theories at the pleading stage." Id., quoting Lass v. Bank of America, N.A., 695 F.3d 129, 140 (1st Cir. 2012).
1.4. "Overcharge" Claims
Brookdale asserts in its motion to dismiss that the unjust enrichment and c. 93A claims regarding the allegations that Brookdale charged for services it never provided, in Counts VII and VIII, should be dismissed because paragraph 221 of the amended complaint "confirms that [the] alleged overcharges were reimbursed." It is not clear whether Brookdale is pressing this point, as it is not supported by any argument in its memorandum of law, as required by Superior Court Rule 9A(a)(1).
Assuming that Brookdale has not waived this point, it is based on an incorrect reading of the amended complaint. In fact, paragraph 221 states that "Brookdale reimbursed Hennessy $5, 277.00 as partial reimbursement for its overcharges."
The allegation that Brookdale made a "partial reimbursement," meaning that it repaid some but not all of the alleged overcharges, does not establish that Hennessey’s overcharge claims are moot.
2. Motion to Strike Class Allegations
Defendants have also moved to strike the class allegations in the amended complaint if any of Hennessy’s claims survive the motion to dismiss, which most have. Defendants argue that Hennessy to assert claims on behalf of residents at Brookdale facilities other than the one in Dedham where she lives. They also argue that Hennessy cannot meet the requirements for class certification under Mass.R.Civ.P. 23 or G.L.c. 93A. The Court is not convinced.
A motion to strike class allegations from a complaint, before a plaintiff has had any opportunity to seek discovery of information relevant to the merits of class certification, should be granted only when "it is obvious from the pleadings that the proceeding cannot possibly move forward on a class-wide basis." See Manning v. Boston Medical Center Corp., 725 F.3d 34, 59 (1st. Cir. 2013) (vacating order striking class and collective action allegations pursuant to Fed.R.Civ.P. 12(f)).
Although Manning was decided under the federal rules of civil procedure, the same principles apply here. See generally Smaland Beach Ass’n, Inc. v. Genova, 461 Mass. 214, 228 (2012) (judicial construction of federal rules of civil procedure applies to parallel Massachusetts rules, "absent compelling reasons to the contrary or significant differences in content" (quoting Strom v. American Honda Motor Co., 423 Mass. 330, 335 (1996), and Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass. 174, 180 (1975)).
2.1. Standing as to Other Facilities
The amended complaint seeks certification of a class that would include prospective, current, or former tenants at any assisted living facilities in Massachusetts that are owned or operated by Brookdale or Emeritus.
Defendants’ assertion that Hennessy cannot possibly represent tenants who lived at facilities other than the Dedham location where Hennessy now resides is without merit.
The Supreme Judicial Court rejected a very similar argument in Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 369-70 (2008). In Salvas, two individual plaintiffs "sought to represent a class of approximately 67, 500 current and former Wal-Mart hourly employees who worked at forty-seven Wal-Marts in Massachusetts during the class period." Id. at 346-47. Although the class was initially certified, a judge later decertified the class in part on the ground that the named plaintiffs had not worked at all forty-seven stores and could not muster testimony from competent witnesses in each of the forty-seven stores. Id. at 369. The SJC held that this was reversible error because the plaintiffs claimed and then produced evidence that all class members "were subject to the identical terms and conditions" as a matter of company policy. Id. at 370. The SJC held that the judge abused his discretion in decertifying the class, and ordered recertification. Id. at 372 & 378.
Just as in Salvas, class certification cannot be denied-and the class allegations therefore should not be stricken-merely because Hennessy seeks to represent people who live or have lived at other facilities. With respect to the community fee claims, Hennessy alleges that all residents have been subjected to these practices as a matter of uniform policy. With respect to the overcharging claims, there is nothing on the face of the complaint that suggests that the alleged overcharging was limited to the Dedham facility, or that any overcharging at other facilities raises such distinct legal or factual issues that they could not be heard as a class action encompassing the claims of residents at different facilities.
2.2. Timing of Certification Decision
Defendants’ other challenges to class certification are based on allegations of fact outside the complaint, and therefore cannot be raised in a motion to strike the class allegations. See Manning, 725 F.3d at 60. Since "the dispute concerning class certification is factual in nature and discovery is needed to determine whether a class should be certified, [the] motion to strike the class allegations at the pleading state is premature." Buonomo v. Optimum Outcomes, Inc., 301 F.R.D. 292, 295 (N.D.Ill. 2014) (internal quotation marks omitted); accord, e.g., Reynolds v. Lifewatch, Inc., 136 F.Supp.3d 503, 515 (S.D.N.Y. 2015). Once all necessary discovery has been completed, Defendants will be in a position to raise these arguments either in opposing a motion by Hennessy for class certification, or by bring their own motion to deny class certification.
3. Motion to Report
Defendants have also asked the Court, if it denies the motion to dismiss, to report its decision to the Appeals Court under Mass.R.Civ.P. 64(a) and to "stay all proceedings in the trial court" pending that appeal. They argue that the question of whether assisted living facilities are governed by landlord-tenant law is an important but unsettled question that merits prompt review by an appellate court, that the issue is being raised on appeal in another Superior Court case, and that it makes more sense to allow an interlocutory appeal in this action than to proceed with potentially "lengthy and costly discovery."
Hennessy opposes this motion, in part on the ground that she is more than sixty-five years old and therefore is entitled by statute to a "speedy trial so that" this matter "may be heard and determined" in the trial court "with as little delay as possible." See G.L.c. 231, § 59F.
The Court accepts this representation by counsel even though it is not supported by an affidavit. Brookdale’s staff knows Ms. Hennessy-since she currently lives and receives services at Brookdale’s facility-and Brookdale does not question whether Hennessy is actually over 65 years old. Cf. Menard v. McCarthy, 410 Mass. 125, 127 (1991) (accepting as true counsel’s representation as to procedural history, where fact was known to both sides and opposing party did not controvert the representation); City of Leominster v. International Broth. of Police Officers, Local 338, 33 Mass.App.Ct. 121, 123 (1992) (same).
"The decision whether to report an interlocutory ruling in accordance with Mass.R.Civ.P. 64(a) is highly discretionary." McMenimen v. Passatempo, 452 Mass. 178, 189 (2008).
The Court concludes, in the exercise of its discretion, that under these circumstances it is not appropriate to report this decision to the Appeals Court on an interlocutory basis. Interrupting this case while awaiting an appeal that could take a year or two to be resolved seems inconsistent with the Legislature’s directive that older civil litigants are entitled to a prompt resolution of their claims at the trial court level. Furthermore, the community fee claims that the Defendants seek to challenge in an interlocutory appeal are only part of this case; Defendants have not made any showing that an interlocutory appeal would be appropriate as to overcharging claims. Finally, since the legal issue that Defendants wish to have reported is already on appeal in another case, there is no apparent need to report this decision on an interlocutory basis, as the issue will be decided on appeal in that other matter.
ORDER
Defendants’ motion to dismiss or to strike the class allegations is ALLOWED IN PART. It is allowed with respect to dismissal of the claim for intentional fraud in Count VI of the amended complaint, which is hereby dismissed without prejudice. This motion is denied with respect to Defendants’ request to dismiss the remaining claims and with respect to their alternative request to strike the class allegations in the complaint.
Defendants’ motion to report its decision on the motion to dismiss to the Appeals Court is DENIED.