Clarion's motion to dismiss the cross-claims of co-defendants Slovin and Town and Country will also be granted. Clarion has no relationship with either of those defendants nor does it owe either of them any duty.
Defendants United States of America and the Secretary of Housing and Urban Development move to dismiss plaintiff's complaint for lack of jurisdiction over the person and insufficiency of service of process pursuant to Fed.R.Civ.P. 12(b)(2) and (4), and failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6).
Defendants argue that this Court lacks personal jurisdiction over the defendants due to improper service of process upon the Secretary of HUD. Moreover, they assert that plaintiff cannot sustain a tort claim for either a negligent breach of an established duty, a negligent breach of an accepted duty, the tort of misrepresentation, or the negligent breach of a duty created by an implied warranty of habitability. Finally, defendants contend that plaintiff's complaint is actually a contract claim which must be dismissed because plaintiff expressly contracted to purchase the property "as is."
Defendants' contention that this Court lacks personal jurisdiction is unfounded. Federal Rule 4 requires service by certified mail to be made on the agency of the United States in question and the Attorney General. Personal service is required to be made on the United States Attorney. The Secretary of Housing and Urban Development has designated the Associate General Counsel for Litigation as his agent to receive service. 46 Fed.Reg. 2389 (1981); 36 Fed.Reg. 11052 (1971). In the present action plaintiff properly served the United States Attorney and the Attorney General. However, the Secretary of HUD was served by delivering process to Secretary of Housing and Urban Development, Walter Johnson, 60 Park Place, Newark, New Jersey, 07102, rather than to the Associate General Counsel for Litigation. If any infirmity in the service of process exists, it is in this discrepancy.
By serving the Secretary of HUD directly, rather than through his designated agent, plaintiff complied with the literal wording of Fed.R.Civ.P. 4(d)(5). Not serving the Secretary's designated agent is harmless error. The necessary parties in the Government had actual notice of the suit and suffered no prejudice from the technical defect in service. Jordan v. United States, 224 U.S. App. D.C. 267, 694 F.2d 833 (D.C.Cir.1982). Accordingly, defendants' motion to dismiss for lack of personal jurisdiction and/or insufficient service of process is denied.
Defendants next argue that plaintiff's complaint should be dismissed because she cannot sustain a tort claim for a negligent breach of an established duty, a negligent breach of an accepted duty, the tort of misrepresentation or the negligent breach of a duty created by an implied warranty of habitability. In response, plaintiff does not dispute that the defendants had no established duty and concedes that the Tort Claims Act, 28 U.S.C. § 2680(h), bars any tort claim arising from misrepresentation. Plaintiff argues, however, that the United States and HUD assumed the duty of inspecting the house and the negligent performance of that duty creates liability under the "Good Samaritan" rule of Neal v. Bergland, 646 F.2d 1178 (6th Cir.1981). Moreover, plaintiff contends that the term "as is" in the sale contract, while negating the implied warranty of merchantability, does not negate express warranties. Finally, plaintiff asserts the "as is" clause should not release a party from liability where that party has acted in such a way as to induce reasonable reliance on the circumstances as they appear to be.
A review of the record before this Court reveals that defendants' motion to dismiss for failure to state a claim should be granted. Count I of plaintiff's complaint alleges that "the defendant Secretary of the United States Department of Housing and Urban Development negligently failed to winterize the premises at 20 Beechfern Lane, Willingboro, New Jersey or had same winterized in a negligent manner by a person unknown at the present time by plaintiff. . . ." Therefore, the inquiry of this motion must begin and end with the question of whether HUD negligently winterized or had the premises negligently winterized.
Defendants argue, and plaintiff does not appear to disagree, that HUD had no existing duty to winterize the house. Defendants contend that HUD merely entered into a contract of sale and that it never made, nor did it ever agree to make, any repairs, thereby making reliance on the "Good Samaritan" rule inappropriate. Defendants distinguish this case from Neal v. Bergland, supra, by noting that in the present case HUD undertook no performance and, in fact, sold the house "as is." In Neal, HUD assumed the duty to make an appraisal in order for the plaintiff to obtain an F.H.A. mortgage and thereby became liable for the negligent performance of that duty.
In response, plaintiff argues that by inspecting the house HUD assumed a duty, the negligent performance of which creates liability. Whether or not meritorious, plaintiff's argument does not follow the allegations contained in her complaint. The complaint alleges only that the defendant Secretary of Housing and Urban Development failed to winterize or had the winterization done in a negligent manner. Nowhere in the complaint is it alleged that the defendants are liable to the plaintiff due to their failure to inspect the premises properly. Plaintiff's reliance on this argument is therefore inappropriate. The plaintiff has failed to demonstrate that the defendants assumed the duty of winterizing the home. Accordingly, there can be no liability under the "Good Samaritan" rule.
Defendants next contend that there is no liability arising from an implied warranty of habitability. While noting that the New Jersey Supreme Court in McDonald v. Mianecki, 79 N.J. 275, 398 A.2d 1283 (1979), ruled that an implied warranty of habitability running from builder-vendor to new home owners was consonant with the Legislature's express purpose of protecting new homeowners, defendants argue that the policies behind these implied warranties do not suggest extending them to vendors such as HUD. In order to resolve this issue one need not look solely to the policies behind the implied warranties. The question raised herein is very similar to the caveat emptor issue raised in Clarion's motion for summary judgment. As this Court stated in resolving that issue:
Although not expressly stated in McDonald, it appears that [the doctrine of caveat emptor] does retain a measure of viability where, as here, the sale being scrutinized is of a previously owned home. However, even in the sale of an older home, caveat emptor applies only in the absence of fraud or misrepresentation by a vendor.
McDonald, supra, at 282, n. 1, 398 A.2d 1283.
Plaintiff's complaint does not allege that defendants United States of America or Secretary of Housing and Urban Development committed fraud or misrepresented the true condition of the house.
Accordingly, the Court finds that as to these two defendants the doctrine of caveat emptor applies. As such, these defendants breached no duty arising from an implied warranty of habitability.
Plaintiff has failed to establish that defendants United States of America and Secretary of Housing and Urban Development owed a duty to plaintiff under any relevant theory of liability. Accordingly, plaintiff's complaint is dismissed as to those defendants.
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