                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA


    EVELYN ARTHUR, et al.,

                 Plaintiffs,

          v.
                                                           No. 18-cv-2037 (DLF)
    DISTRICT OF COLUMBIA HOUSING
    AUTHORITY, et al.,

                  Defendants.


                           MEMORANDUM OPINION AND ORDER

         Evelyn Arthur and her son Robert Arthur initially brought this action against the District

of Columbia Housing Authority (DCHA), CIH Properties, Inc. (CIH), the District of Columbia

(D.C.), and seven individual Metropolitan Police Department (MPD) officers, alleging eighteen

counts. See First Am. Compl. (Complaint or Compl.) ¶¶ 86–177, Dkt. 32. The Court previously

granted in part DCHA and CIH’s Motion to Dismiss. See April 11, 2020 Mem. Op., Dkt. 57.

The plaintiffs now request that the Court reconsider its dismissal of Claim 12, Ms. Arthur’s

common law implied warranty of habitability and right of quiet enjoyment claims against DCHA

and CIH. See Pls.’ Mot. to Reconsider at 1, Dkt. 59; April 11, 2020 Mem. Op. at 14–15, Dkt. 57.

For the reasons that follow, the Court will deny the motion to reconsider.

I.       BACKGROUND 1

         Evelyn Arthur is a deaf 78-year-old resident of Claridge Towers, a facility owned by the

District. Compl. ¶¶ 9–10. DCHA operates public housing programs within the District, and CIH




1
 This section includes only those facts that are relevant to the motion before the Court. A more
extensive discussion of the facts is set forth in the Court’s initial opinion. See Mem. Op. at 1–9.
is a Maryland corporation that manages Claridge Towers. Id. ¶¶ 11–12. According to the

plaintiffs, DCHA has a “phone call policy” for visitors to its properties. Id. ¶ 17. Under this

policy, a visitor “must present identification to the security officer on duty. The security officer

records the visitor’s name in a log book and then calls the resident to confirm that the resident is

at home and wishes to receive the guest. If the resident does not answer the phone, the visitor

must leave the property.” Id. Because Ms. Arthur is deaf, she cannot hear the phone ring when

she has a visitor. Id. ¶ 18. Some time before January 2017, DCHA modified its “phone call

policy” for Ms. Arthur. Id. This modification allowed Ms. Arthur’s son Robert to visit her

without calling ahead of time, and it also allowed him to receive calls from and give permission

to guests who visited Ms. Arthur. Id.

       On January 18, 2017, CIH rescinded its prior modification of the “phone call policy” for

Ms. Arthur. Id. ¶ 21. Despite “numerous requests,” CIH refused to revert to its prior practice

and applied its standard “phone call policy” to Ms. Arthur. Id. ¶ 21. In May and June 2017, Mr.

Arthur attempted to visit his mother, and he was not allowed in her apartment because his mother

did not answer the video relay system. Id. ¶ 22. On June 17, 2017, Mr. Arthur entered his

mother’s apartment anyway, and the security officer called CIH and the DCHA police to issue a

“Bar Notice” under 14 DCMR § 9600 to prevent Mr. Arthur from entering the premises in the

near future. Id. ¶¶ 27–30. On June 26, Claridge Towers sent Ms. Arthur a letter informing her

of the Bar Notice issued for her son. Id. ¶ 40. The letter stated that the Bar Notice would expire

on August 17, 2017 and that Ms. Arthur could face eviction and landlord-tenant court

proceedings if she permitted her son to access the premises. Id.

       On August 10, 2017, Mr. Arthur confirmed with the DCHA police that the last day of his

Bar Notice was August 17 and that he could reenter the premises on August 18. Id. ¶ 48. He




                                                  2
called the DCHA police again on August 18, and the officer on duty “confirmed that there was

no Bar Notice in effect for [Mr. Arthur] at Claridge Towers.” Id. ¶ 49. However, later that day

when he arrived at Claridge Towers, the security officer “stated that a second Bar Notice had

been issued against Mr. Arthur on July 11, 2017,” preventing him from entering the premises for

six months. Id. ¶¶ 50–52. Neither Mr. Arthur nor his mother had been informed of this second

Bar Notice. Id. ¶ 53.

        Other visitors also were denied entry to Ms. Arthur’s apartment. On August 22, 2017,

the security officer refused to allow a service technician into Ms. Arthur’s apartment to fix her

video relay system. Id. ¶ 56. Though she “had notified Claridge Towers’ staff in advance and in

writing that her Video Relay System was not working and had notified them, as provided by 14

DCMR § 9600.3, of the date and time the service technician would arrive,” the technician was

turned away when Ms. Arthur did not answer the video relay system he was there to fix. Id.

Friends of Ms. Arthur’s also were turned away in September and November 2017 when she

failed to answer the video relay system. Id. ¶ 58. The plaintiffs now ask the Court to reconsider

their common law implied warranty of habitability and covenant of quiet enjoyment claims.

II.     LEGAL STANDARD

        Rule 54(b) of the Federal Rules of Civil Procedure “allows a litigant to move for

reconsideration or modification of a district court’s interlocutory order disposing of ‘fewer than

all the claims or the rights and liabilities of fewer than all the parties’ ‘at any time’ before the

court’s entry of final judgment.” Cobell v. Jewell, 802 F.3d 12, 19 (D.C. Cir. 2015) (quoting

Fed. R. Civ. P. 54(b)). A district court may reconsider an interlocutory order “as justice

requires.” Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir.

2011) (internal quotation marks omitted). Applying this standard, courts will reconsider a prior




                                                   3
opinion when they have “patently misunderstood a party, [when they have] made an error not of

reasoning but of apprehension, or where a controlling or significant change in the law or facts

has occurred since the submission of the issue to the Court.” Scahill v. D.C., 286 F. Supp. 3d 12,

17–18 (D.D.C. 2017) (alterations adopted and internal quotation marks omitted). “The burden is

on the moving party to show that reconsideration is appropriate and that harm or injustice would

result if reconsideration were denied.” United States ex rel. Westrick v. Second Chance Body

Armor, Inc., 893 F. Supp. 2d 258, 268 (D.D.C. 2012).

III.   ANALYSIS

       A.      Implied Warranty of Habitability

       The plaintiffs argue that the Court erred by rejecting Ms. Arthur’s implied warranty of

habitability claim because, contrary to this Court’s prior opinion, she did allege that the

defendants violated provisions of the D.C. housing code. See Pl.’s Mot. at 3–4. This argument

fails for the following reasons.

       Claim 12 of the complaint, which describes the implied warranty of habitability claim,

contains no citation to a housing code provision, nor does it set forth any facts alleging the

defendants violated a specific provision of the D.C. housing code. See Compl. ¶¶ 159–60. But

looking past Claim 12, the complaint alleges just one conceivable violation of a housing code

regulation: that the defendants failed to properly serve bar notices on Ms. Arthur and her son in

violation of 14 DCMR § 9600.7(a)–(c). See id. ¶ 53. While at other times the complaint

references other provisions of the housing code, it fails to actually allege that the defendants

have violated these other provisions. For instance, the plaintiffs’ citations to 14 DCMR

§§ 9600.2, 9600.3, 9600.5(a)–(c), and 9600.11 in paragraphs 28–30 of the complaint simply

describe DCHA’s barring policy, without any specific allegations that the defendants violated




                                                  4
these provisions. 2 See Compl. ¶¶ 28–30. And while the plaintiffs cite to 14 DCMR § 9600.3 in

paragraph 56, that paragraph asserts that Ms. Arthur complied with the housing code provision,

not that the defendants violated it. See Compl. ¶ 56.

       Taking as true the plaintiffs’ allegation that the defendants violated § 9600.7(a) by failing

to serve a bar notice upon them, such a violation would still not establish a breach of the implied

warranty of habitability. The implied warranty of habitability imposes upon the landlord an

“obligation to the tenant to maintain the premises in accordance with all applicable law.”

Beltway Mgmt. Co. v. Lexington-Landmark Ins. Co., 746 F. Supp. 1145, 1149 (D.D.C. 1990)

(emphasis added). Failing to serve a bar notice does not implicate the landlord’s obligation to

“maintain the premises.” Further, “one or two minor violations standing alone which do not

affect habitability are de minimis” and do not violate the implied warranty. Javins v. First Nat.

Realty Corp., 428 F.2d 1071, 1083 n.63 (D.C. Cir. 1970). The defendants’ failure to properly

serve the bar notices does not affect the habitability of Arthur’s dwelling. And “more than de

minimis violations of the Housing Regulations are required to establish breach of the implied

warranty.” Demisse v. Aldon Mgmt. Corp., No. 18-cv-2270, 2020 WL 1244931, at *7 (D.D.C.

Mar. 16, 2020) (internal quotation marks omitted). Accordingly, the Court will deny the

plaintiffs’ motion to reconsider its prior ruling on the implied warranty of habitability claim.



2
  The provisions cited in these paragraphs primarily describe how DCHA’s “Barring Policy”
applies to its residents. For instance, 14 DCMR § 9600.2 states that “[n]o person may enter upon
a DCHA property unless that person is authorized to be on the property”; § 9600.5(a) states that
“[a]ny resident’s guest who engages in any activity that threatens the health, safety or right to
peaceful enjoyment of the premises by other residents or DCHA employees or violates DCHA
policy is an unauthorized person and may be barred for a Temporary or extended period of
time”; and § 9600.5(b)(1) states that a person who enters DCHA property “without presenting
identification or properly signing the visitor log” may be barred, “unless identified as a guest by
the resident they are visiting.” These provisions govern the behavior of DCHA residents and
their guests, not DCHA, so it is unclear how the plaintiffs could even allege that the defendants
violated these regulations.


                                                  5
       B.      Covenant of Quiet Enjoyment

       The plaintiffs also argue that the Court should reconsider Ms. Arthur’s claim for a breach

of the covenant of quiet enjoyment because it mistakenly stated that a breach of the covenant of

quiet enjoyment requires interference with the tenant’s possession of her property. See Pl.’s

Mot. at 5. The plaintiffs claim that, because the defendants prevented Ms. Arthur’s son, her

guests, and a service technician from visiting her apartment, they interfered with a “permissible

use” of her property and thus violated the covenant of quiet enjoyment. See Pl.’s Reply at 6,

Dkt. 68.

       The plaintiffs misconstrue the state of the law. The proposition that “[t]he landlord’s

covenant for quiet enjoyment . . . goes only to . . . possession” remains valid. Weisman v.

Middleton, 390 A.2d 996, 1001 (D.C. 1978) (internal quotation marks omitted); see also

Demisse, 2020 WL 1244931, at *6 (“The covenant is not broken unless there is an eviction from,

or some actual disturbance in, the possession by the landlord, or by a third person under

paramount title.”) (internal quotation marks omitted). Arthur makes no allegation that the

defendants—by preventing her son, guests and technicians from entering her apartment—

interfered with her possessory interest.

       The cases relied on by the plaintiffs do not implicate the covenant of quiet enjoyment. In

Sobelsohn v. Am. Rental Mgmt. Co., 926 A.2d 713 (D.C. 2007), the court noted that the only

implied obligation at common law was the covenant of quiet enjoyment, and that Javins set forth

an additional implied obligation: the implied warranty of habitability. Id. at 715. Sobelsohn’s

statement that Javins changed the “traditional approach” simply refers to Javins’ discussion of

property law evolving from the older view that a lease was “essentially a property transaction, a

conveyance of an interest in land.” Id.




                                                6
       A breach of the covenant of quiet enjoyment requires a disturbance in physical

possession. See Whole Foods Mkt. Grp., Inc. v. Wical Ltd. P’ship, 288 F. Supp. 3d 176, 191

(D.D.C. 2018). The plaintiffs have not met this “high bar.” Id. Because the plaintiffs have not

established that the defendants interfered with Ms. Arthur’s possession of her apartment, the

Court will deny the plaintiffs’ motion to reconsider on the covenant of quiet enjoyment claims.

       Accordingly, it is

       ORDERED that the plaintiffs’ Motion to Reconsider Dismissal of Claim 12, Dkt. 59, is

DENIED.




                                                            ________________________
                                                            DABNEY L. FRIEDRICH
July 8, 2020                                                United States District Judge




                                                7
