Gross v. Max

906 F. Supp. 2d 802, 2012 WL 5361747, 2012 U.S. Dist. LEXIS 155173
CourtDistrict Court, N.D. Indiana
DecidedOctober 30, 2012
DocketNo. 3:11-cv-463
StatusPublished
Cited by9 cases

This text of 906 F. Supp. 2d 802 (Gross v. Max) is published on Counsel Stack Legal Research, covering District Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gross v. Max, 906 F. Supp. 2d 802, 2012 WL 5361747, 2012 U.S. Dist. LEXIS 155173 (N.D. Ind. 2012).

Opinion

OPINION and ORDER

PHILIP P. SIMON, Chief Judge.

Plaintiffs Velma and Eugene Gross purchased a home from Defendants Richard and Delores Max in 2006, and three years later they discovered their daughter (Plaintiff Sierra Gross) had lead poisoning. On November 9, 2011, the Grosses filed this suit seeking recovery from the Maxes under the Residential Lead-Based Paint Hazard Reduction Act (“RLPHRA”). In an Opinion and Order dated August 2, 2012, 2012 WL 3284168, I dismissed this case on the grounds that it was barred by the statute of limitations.

The Grosses have moved for reconsideration of that order [DE 21], and the arguments they raise are more cogent and persuasive than those found in the mine-run of motions for reconsideration, which tend to repeat arguments that were previously raised and rejected. Nevertheless, after considering the motion in depth, I have ultimately found its arguments unconvincing. Thus, for the reasons explained in detail below, I once again conclude that the Grosses’ claims are time-barred and will deny their motion for reconsideration.

FACTUAL BACKGROUND

The August 2, 2012 Opinion details the factual backdrop of this case, so I refer the uninitiated reader there and will only provide a more cursory sketch here. Velma and Eugene Gross purchased a home from Richard and Delores Max on November 10, 2006, have lived their since then, had their daughter Sierra in 2008, and discovered she had lead poisoning in the summer of 2009. On November 9, 2011, the Grosses filed their Complaint against the Maxes. The Grosses alleged that the Maxes violated RLPHRA when they bought the house by failing to provide them with a lead paint hazard information pamphlet, disclose the presence of any known lead-based paint or lead-based paint hazards, or permit the Grosses a 10-day inspection period as required by 42 U.S.C. § 4852d. A new fact offered in the motion for reconsideration is that the Grosses first “consulted with an attorney concerning their rights with respect to the lead hazards in their home and the lead poisoning that was suffered by Sierra” on August 18, 2009.1

[805]*805My August 2, 2012 Opinion concluded that the Grosses’ Complaint was time-barred. Here’s the short version of how I arrived at that conclusion. First, the injury the Grosses suffered was the failure to receive the proper RLPHRA disclosures (rather than the lead poisoning itself). Second, the four-year, catch-all federal statute of limitations (28 U.S.C. § 1658(a)) applies to RLPHRA claims. Third, the Grosses’ claim accrued on November 10, 2006 when they bought the house. Therefore, their four-year limitations clock started ticking at that point, meaning that they had until November 10, 2010 to file their lawsuit. Their November 9, 2011 Complaint was thus filed one-year too late, and I dismissed it on that ground.2

It is the third step in this analysis — that the Grosses’ claim accrued on November 10, 2006 — that is clearly the most legally complex and it is where the Grosses’ motion for reconsideration rightly focuses most of its energy. The complexity of the issue derives from whether or not the “discovery rule” applies to this case. Under the discovery rule, “a claim accrues once the party performs the alleged unlawful act and once the party bringing a claim discovers an injury resulting from this unlawful act.” Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1139 (7th Cir.1992). In their original briefing, the parties argued vigorously over whether the discovery rule applied to Section 1658(a) and to RLPHRA claims.

My August 2, 2012 Opinion ultimately punted on that issue. I concluded that I didn’t need to “wade into [the] legal morass” of the discovery rule “because in this case the Grosses’ claims are time-barred no matter whether the discovery rule applies or not.” [DE 19 at 8.] First, if the discovery rule did not apply, then it’s clear that the four-year limitations clock began running on November 10, 2006 when the Grosses took ownership of the house and were not provided the necessary disclosures.

Moreover, even if the discovery rule did apply, I concluded that the four-year clock still started on November 10, 2006. This conclusion relied heavily on a First Circuit opinion from earlier this year, Randall v. Laconia, NH, 679 F.3d 1 (1st Cir.2012). The facts of Randall are remarkably similar to this case: the plaintiff purchased a house from the defendant in July of 2003, [806]*806was not provided with the proper RLPHRA disclosures, discovered his son’s lead poisoning in 2008, and filed his RLPHRA suit on February 9, 2010. The district court dismissed the ease as time-barred, and the First Circuit affirmed. In affirming, the First Circuit concluded that the case was time-barred even if the discovery rule applied:

Because at the time of closing Randall had discovered (or at a minimum should have discovered) that the City had not completed the disclosure form or made any of the compulsory disclosures, the statute of limitations clock started ticking. It is not necessary that Randall knew the full extent of, or the particulars of, the City’s wrongful conduct.... Even applying the discovery rule, Randall’s cause of action still accrued when he closed on the property on July 22, 2003.

Id. at 7-8. Given this holding, I likewise concluded that, even if the discovery rule applied, the Grosses’ four-year clock began running on November 10, 2006 when they took ownership of the house.

In their motion for reconsideration, however, the Grosses make a persuasive argument that my reliance on Randall was misplaced. Referring back to the district court’s opinion in Randall, the Grosses point out that it was far easier to impute notice to the plaintiff under the facts of that case because at the time he purchased the house he had signed a form titled “Disclosure of Information on Lead— Based Paint and Lead — Based Paint Hazards FOR HOUSING SALES.” Randall v. City of Laconia, 2011 WL 1085679, at *1 (D.N.H.2011). The disclosures listed on that form were never actually provided to him — this is the reason he had a cognizable RLPHRA claim in the first place — but by signing the form it was easier to find that he was at least generally on notice about the existence of the RLPHRA disclosure requirements. This was a vitally important fact for the district court’s analysis about when the plaintiff could reasonably have discovered his claim:

Given that Randall signed his portion of the disclosure form in May of 2003, and discussed it with his agent at that time, there was nothing to prevent Randall from discovering his injury, i.e., his lack of Title X disclosure when he took title, at the time he was injured. That is, there is no basis for determining that Randall’s injury “could not reasonably have been discovered at the time of the act or omission.” So, too, with the causal relationship between Randall’s injury (his lack of Title X disclosure) and the City’s act or omission (its failure to provide Title X disclosure).

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Cite This Page — Counsel Stack

Bluebook (online)
906 F. Supp. 2d 802, 2012 WL 5361747, 2012 U.S. Dist. LEXIS 155173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gross-v-max-innd-2012.