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Phoenix v. U.S. Home Corporation

United States District Court, D. New Jersey

November 3, 2014

Cydnee Phoenix, Plaintiff,
v.
U.S. Home Corporation d/b/a Lennar Homes, Defendant.

OPINION

JOSEPH H. RODRIGUEZ, District Judge.

This matter is before the Court on Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the motion will be granted (in part?).

I. Background

The following facts are taken from Plaintiff's complaint, and, as such, the Court accepts them as true for the purposes of this motion. In September 2013, Plaintiff Cyndee Phoenix ("Plaintiff or Phoenix"), along with her sister, mother, and a real estate agent, visited a planned residential community known as Cedar Point, where Plaintiff would eventually purchase property ("Property"). (Compl. ¶ 5, 9.) A sales agent and representative of Defendant, Ray DeChristie ("DeChristie"), met Plaintiff and her family at the Property. (Compl. ¶ 9.) Defendant-U.S. Home Corporation, d/b/a Lennar Homes ("Lennar")-is the builder, developer, and broker of the houses in Cedar Point, including the Property. (Compl. ¶ 6.) During this visit, Plaintiff encountered Kevin Elville Potter ("Potter"), who resides across the street from the Property. (Compl. ¶ 10.) Potter spoke with the sales representative about the lack of services by Defendant and told Plaintiff and her family not to let Lennar do to you what they have done to us (referring to himself and his family). (Compl. ¶ 11.)

After this encounter, Plaintiff asked DeChristie whether there was a problem with Potter. (Compl. ¶ 12.) DeChristie informed them that there was "no problem, " implying that Potter was no longer eligible for services because of the amount of time that had passed since his home was purchased. (Compl. ¶ 13.) On September 21, 2013, Plaintiff signed the Agreement of Sale, and on September 23, 2013, Defendant signed the Agreement of Sale. (Compl. ¶ 14.) On October 30, 2013, Plaintiff purchased the Property from Defendant and has resided there since November 7, 2013. (Compl. ¶ 4.) In deciding to purchase the Property, Plaintiff relied on Defendant's advertisements, which spoke to the "wonderful lifestyle" of the community and stated that "Quality, Value and Integrity are the hallmarks" of the community. (Compl. ¶ 7, 8.)

After purchasing the Property, Plaintiff learned that Potter was not receiving services as a result of his "harassing, hostile, and volatile interactions" with Defendant's agents, employees, and/or workers. (Compl. ¶ 15.) This information was known by Defendant and DeChristie before Plaintiff's September visit. (Compl. ¶ 15.) Prior to purchasing the property, Plaintiff was never informed of Potter's harassing, hostile, and volatile behavior. (Compl. ¶ 19.) If Plaintiff had known of Potter's behavior, she would not have purchased the Property. (Compl. ¶ 20.)

After purchasing the Property, Plaintiff became aware that Potter parked his vehicles in front of her Property, blocking the driveway. (Compl. ¶ 21, 22, 23.) Upon Plaintiff's request, Potter agreed to move his cars when Plaintiff moved in. (Compl. ¶ 22.) Unbeknownst to Plaintiff, on October 1, 2013, Defendant's general counsel, Marcie R. Getelman, sent a letter to Potter's wife telling her that her husband's "frustration with Lennar is misplaced and the harassing conduct needs to stop immediately." (Compl. ¶ 23.) The letter referenced Potter's parking his vehicles in front of Plaintiff's residence. (Compl. ¶ 23.) However, neither Plaintiff nor any member of her family told Defendant about Potter blocking her driveway, nor did they request a letter to be sent. (Compl. ¶ 25.)

Upon moving onto the Property, Potter's vehicles were still parked in front of the Property, occasionally close to Plaintiff's mailbox. (Compl. ¶ 27, 29.) Potter refused to move them upon Plaintiff's request, referencing the October 1, 2013 letter. (Compl. ¶ 28.) The location of these vehicles has interfered with the United States Postal Service's ability to approach Plaintiff's mailbox, resulting in the mail carrier not delivering mail and requiring Plaintiff to physically pick up her mail from the post office. (Compl. ¶ 9.)

Potter's behavior became hostile, belligerent, and increasingly harassing, such that Plaintiff worried that Potter would become violent in the future. (Compl. ¶ 28, 29.) Potter has made snide and racist comments about Plaintiff and her family; spit in the direction of Plaintiff and her family; blasted his music loudly; taken pictures of Plaintiff's guests and stared them down in attempts to intimidate them; and called the police on Plaintiff, among other means of harassment and intimidation. (Compl. ¶ 29.) In response to his behavior, Plaintiff and her sister filed complaints for harassment against Potter in Municipal Court on November 12, 2013. (Compl. ¶ 30.) Plaintiff also hired a security guard in fear of retaliation for filing the harassment complaints. (Compl. ¶ 31.)

Plaintiff's counsel informed Defendant's general counsel of Potter's harassing conduct, asking Defendant to eliminate the problems caused by Potter. (Compl. ¶ 33.) Defendant has not taken any action to stop the harassment. (Compl. ¶ 34.) Potter's behavior has not stopped, and, as a result, Plaintiff claims to have been damaged. (Compl. ¶ 35.) Plaintiff now brings claims for fraud, equitable fraud, negligence misrepresentation and omission, violation of the New Jersey Consumer Fraud Act ("CFA"), violation of the Planned Real Estate Development Full Disclosure Act ("PREDFDA"), and negligent infliction of emotional distress.

II. Standard

A complaint should be dismissed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim. Fed.R.Civ.P. 12(b)(6). When deciding a motion to dismiss pursuant to Rule 12(b)(6), ordinarily only the allegations in the complaint, matters of public record, orders, and exhibits attached to the complaint, are taken into consideration.[1] See Chester County Intermediate Unit v. Pa. Blue Shield , 896 F.2d 808, 812 (3d Cir. 1990). It is not necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp. , 561 F.2d 434, 446 (3d Cir. 1977). The question before the Court is not whether the plaintiff will ultimately prevail. Watson v. Abington Twp. , 478 F.3d 144, 150 (2007). Instead, the Court simply asks whether the plaintiff has articulated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007).

"A claim has facial plausibility[2] when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 663 (2009) (citing Twombly , 550 U.S. at 556). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal , 556 U.S. at 680.

The Court need not accept "unsupported conclusions and unwarranted inferences, '" Baraka v. McGreevey , 481 F.3d 187, 195 (3d Cir. 2007) (citation omitted), however, and "[l]egal conclusions made in the guise of factual allegations... are given no presumption of truthfulness." Wyeth v. Ranbaxy Labs., Ltd. , 448 F.Supp.2d 607, 609 (D.N.J. 2006) (citing Papasan v. Allain , 478 U.S. 265, 286 (1986)); see also Kanter v. Barella , 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher , 423 F.3d 347, 351 (3d Cir. 2005) ("[A] court need not credit either bald assertions' or legal conclusions' in a complaint when deciding ...


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