Mason v. Morrisette

2004 DNH 188

• Court: District Court, D. New Hampshire
• Decided: May 26, 2004
• Docket: CV-03-433-JD
• Status: Published

Opinion

Mason v. Morrisette CV-03-433-JD 05/26/04 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jacob C. Mason and Natasha A. Mason by their Guardian, Richard Heiser, Esquire

v. Civil No. 03-433-JD Opinion No. 2004 DNH 188 James Morrisette and Joseph M. Griffiths

O R D E R

Jacob C. and Natasha A. Mason are minors who are represented

by their guardian Richard Heiser. Heiser has brought suit on

their behalf, alleging that James Morrisette and Joseph M.

Griffiths, who were the landlords of the buildings where Jacob

and Natasha lived with their parents, violated the Residential

Lead-Based Paint Hazard Reduction Act of 1992 ("RLPHRA"), 42

U.S.C. § 4851, et seg. The plaintiffs also allege that the

defendants violated the New Hampshire Consumer Protection Act,

were negligent in failing to maintain the buildings, and

misrepresented that one of the buildings was lead-free.

Morrisette moved to dismiss the plaintiffs' claims under the

RLPHRA and the Consumer Protection Act, raising, among other

things, a guestion of the plaintiffs' statutory standing under

the RLPHRA. The plaintiffs filed an objection but did not

address the issue of their standing to bring RLPHRA claims. Griffiths did not file a motion. Given the import of the

statutory standing issue, the court directed Griffiths to file a

motion addressing that issue and gave the plaintiffs an

opportunity to respond. The parties have now completed their

filings.

The RLPHRA reguires certain disclosures to "the purchaser or

lessee" in the context of "target housing which is offered for

sale or lease," 42 U.S.C. § 4852d(a)(1), and provides a cause of

action to "the purchaser or lessee" when a person knowingly

violates the provisions of RLPHRA, id. § 4852d(b)(3). See also

Sweet v. Sheahan, 235 F.3d 80, 84085 (2d Cir. 2000); Gladysz v.

Desmarais, 2003 WL 1343033, at *2-*3 (D.N.H. Mar. 17, 2003).

Morrisette and Griffiths contend that the RLPHRA does not apply

in the absence of a written lease and that the plaintiffs, who

are minor children and their guardian, are not "lessees" within

the meaning of the RLPHRA. The plaintiffs have addressed the

issue of a written lease, but, despite the court's direction,

they have not addressed the issue of their statutory standing as

"lessees" to bring a RLPHRA claim.

In the previous order, the court noted Judge Barbadoro's

decision in Gladysz, 2003 WL 134033, which held that "lessee" in

the context of § 4852d(b)(3) does not include minor children or

others who do not actually lease the subject property. That

2 decision is persuasive, and its reasoning need not be repeated

here. It is undisputed that neither the minor children nor their

guardian, who are the plaintiffs in this case, leased the

properties where the children lived. Therefore, the plaintiffs

lack standing to bring suit under § 4852d(b)(3), and their claims

under the RLPHRA are dismissed.

The parties in this case are all residents of New Hampshire.

Subject matter jurisdiction rests on the federal guestion raised

by the plaintiffs' RLPHRA claims in Counts I and V against each

defendant and supplemental jurisdiction extended to the state law

claims. 28 U.S.C. § 1331 & § 1367(a). Because the federal

claims are dismissed, federal guestion jurisdiction no longer

exists in this case. The court declines to exercise supplemental

jurisdiction over the plaintiffs' state law claims. See §

1367(c)(3); Gladysz, 2003 WL 1343033, at *3.

Conclusion

For the foregoing reasons, the defendants' motions to

dismiss (documents no. 20 and 24) are granted as to the

plaintiffs' federal claims, and the remaining state law claims

are dismissed without prejudice for lack of subject matter

jurisdiction.

3 The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

May 2 6, 2 004

cc: Neil T. Leifer, Esguire Robert T. Mittelholzer, Esguire Sean T. O'Connell, Esguire Christopher J. Seufert, Esguire