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Brown v. Fort Benning Family Communities LLC

United States District Court, M.D. Georgia, Columbus Division

June 3, 2015

LT. COL. JOHN CALE BROWN, SR., and DARLENA BROWN, Individually and as parents and Next Friends of JOHN CALE BROWN, JR., a Minor, Plaintiffs,


CLAY D. LAND, Chief District Judge.

John Brown, Sr. is a lieutenant colonel in the United States Army. While stationed at Fort Benning, Georgia, he and his wife Darlena ("the Browns") rented a home on post from Defendant Fort Benning Family Communities, LLC, d/b/a Villages of Benning ("the Villages"). The Villages is a private company that provides residential housing to soldiers on Fort Benning pursuant to a contract with the Army. The Browns claim that lead in their rented residence made their minor son ill. They contend that the Villages failed to provide them with a reasonably safe residence, failed to properly abate the lead in their residence, and made misrepresentations to them regarding the presence of lead in the home. The Browns filed an action in the Muscogee County Superior Court, alleging state law tort claims against the Villages for negligence, nuisance, and fraud. The Villages removed the case to this Court. The Browns then amended their complaint to add more specific factual allegations in support of their fraud claim and to add Defendant Michaels Management Services Inc. as a party.

The Villages seeks dismissal of the Browns' complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), contending that this Court lacks subject matter jurisdiction over the case because the Villages has derivative sovereign immunity from suit. The Villages alternatively argues that the Browns fail to state a fraud claim as a matter of law, and that the fraud claim should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the Court finds that although the United States may be entitled to sovereign immunity, that immunity does not extend to the Villages. The Court further finds that the Browns adequately alleged a claim for fraud. Accordingly, the Villages' motion to dismiss (ECF No. 15) is denied.


I. Rule 12(b)(1) Standard

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) can be either facial or factual. Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1169 (11th Cir. 2011). When a party raises a factual attack to subject matter jurisdiction, as the Villages does here, the Court "is not obligated to take the allegations in the complaint as true" but rather "may consider extrinsic evidence such as deposition testimony and affidavits." Id . (internal quotation marks omitted). The Court "may independently weigh the facts and is not constrained to view them in the light most favorable to the non-movant." Id.

II. Rule 12(b)(6) Standard

"To survive a motion to dismiss" under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The complaint must include sufficient factual allegations "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. In other words, the factual allegations must "raise a reasonable expectation that discovery will reveal evidence of" the plaintiff's claims. Id. at 556. "Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because it strikes a savvy judge that actual proof of those facts is improbable.'" Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556).


Lt. Col. Brown is an active member of the Army stationed at Fort Benning, Georgia. He and his family rented housing from the Villages, which owns and operates military housing at Fort Benning on behalf of, and as part of a real estate public-private venture with, the Army. This venture is established under the authority of the Military Housing Privatization Initiative ("Housing Initiative"), 10 U.S.C. § 2871 et seq . Defendant Michaels Managing Services provides routine upkeep and maintenance to properties on behalf of the Villages. The Browns allege that Defendants were responsible for the inspection and abatement of toxic levels of lead in their rented home.

The Browns signed a lease for 600 Wickersham, Fort Benning on or about April 1, 2011. At that time, the Villages presented the Browns with a Lead-Based Paint Addendum. The Addendum warned that housing built before 1978 may contain lead-based paint and that exposure to lead could be harmful to young children and pregnant women. The box next to the statement "[k]nown lead-based paint and/or lead-based paint hazards are present in the housing (explain)" was marked, with the explanation that "[i]n 2005 an assessment was done by Altec Testing & Engineering, Inc. [r]esults of which are available upon request." Mot. to Dismiss Ex. B, Lead-Based Paint Addendum, ECF No. 15-2 at 13 [hereinafter Lead Addendum]. Mrs. Brown expressed concern, stating that she had an eleven-month old child and was pregnant. Cathy McClendon, an employee or agent of the Villages or Michaels Management, told the Browns: "You have nothing to worry about. We are just required to give you this form. People have lived in these houses for years and they've been properly abated and examined after each family moves out.... We repaint after every family moves out." 1st Am. Compl. ¶ 6, ECF No. 11. Lt. Col. Brown requested the assessment referenced in the Lead Addendum, but Ms. McClendon told him that it was not available to him at that time.

On or before December 20, 2012, the Browns told Defendants that they suspected their minor child JC was suffering from lead poisoning because a child psychologist diagnosed JC with "Pervasive Development Disorder; Mixed Receptive and Expressive Language Disorder; [and] Developmental Delays." Id . ¶ 10. The Browns requested a lead test for the home, which revealed the presence of lead at 600 Wickersham and required the Browns to vacate the premises. The Browns moved to 602 Wickersham and requested a lead test on that home from the Columbus Department of Public Health. Two separate tests revealed lead levels higher than the federal standard, indicating a possible lead hazard. The Browns again asked to view the assessment referenced in the Lead Addendum, and were permitted to do so in the Villages' office under the condition that they neither copy nor photograph the document. The assessment involved two randomly selected houses on post but not on Wickersham.

The Lead Addendum stated that the Villages provided the Browns with "all available records and reports pertaining to lead-based paint and/or lead-based paint hazards in the housing (list documents below)." Lead Addendum. In the space below this statement, the Lead Addendum said that "[s]urvey results are available upon request from management. Test results for homes that were sampled are provided to resident upon move-in." Id . The Browns maintain that ...

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