                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
RON DIXON, As Conservator for )
Beatrice Jiggetts,            )
                              )
     Plaintiff,               )
                              )
     v.                       )     Civil Action No. 09-1789 (RWR)
                              )
MIDLAND MORTGAGE CO.,         )
                              )
     Defendant.               )
______________________________)

                   MEMORANDUM OPINION AND ORDER

     Plaintiff Beatrice Jiggetts brings this action against the

defendant, Midland Mortgage Company (“Midland”), alleging claims

of trespass, conversion, and breach of contract arising out of

Midland changing the locks and foreclosing on her home.    Midland

moves to dismiss under Federal Rule of Civil Procedure 12(b)(6),

arguing that its home entry was authorized because Jiggetts

defaulted on her mortgage and abandoned her home, that the law of

conversion applies to personal property and not real property,

and that the complaint fails to allege the elements of a

contract.   Because conversion applies only to chattel, Midland’s

motion to dismiss Jiggetts’s conversion claim will be granted.

However, because the complaint amply states a cause of action for

both trespass and breach of contract and Midland does not show it
                                    -2-

was authorized to enter Jiggetts’s home, Midland’s motion to

dismiss Jiggetts’s trespass and breach of contract claims will be

denied.

                             BACKGROUND

     Jiggetts co-owned with Charles L. Chesley a single-family

home located in Washington, D.C.      (Compl. ¶ 4.)      For the past

several years, however, Jiggetts has lived in a nursing home

because she suffers from dementia.         While Jiggetts was in the

nursing home, Chesley was to make the monthly mortgage payments

on the property, but failed to do so.         (Id. ¶ 5.)   Thus, Midland

chose to foreclose.    (Id. ¶ 6.)

     Jiggetts alleges that, on approximately July 16, 2009, her

conservator, Ron Dixon, came to an agreement with Midland to

postpone the foreclosure sale until August 19, 2009 in order to

give Dixon an opportunity to secure a buyer for the house and

avoid foreclosure.    (Id. ¶ 10.)    Midland then scheduled a

foreclosure sale for August 19, 2009.         (Id. ¶ 7.)   During the

last week of July, Dixon found a potential buyer and asked

Chesley to prepare the property for the potential buyer’s visit.

(Id. ¶ 11.)   When Chesley arrived, he discovered that the locks

on the property had been changed.         (Id.)   Chesley and Dixon

contacted Midland, and Midland’s attorney told them that the deed
                                 -3-

of trust authorized Midland’s entry into the property.     (Id.)

Midland ultimately gave Dixon the combination to unlock the

house.   (Id. ¶ 12.)

     Jiggetts brought suit in the Superior Court of the District

of Columbia alleging that Midland’s entry into the property and

alteration of the locks constituted trespass and conversion (id.

¶¶ 14-19) and a breach of contract.    (Id. ¶¶ 21-24.)   Midland

removed this action to federal court on the basis of diversity

jurisdiction and now moves to dismiss, arguing that it cannot be

held liable for trespass because it had a superior possessory

interest in the property, that the law of conversion applies to

personal property only, and that Jiggetts has failed to state a

claim for breach of contract.1

                            DISCUSSION

     “‘To survive a motion to dismiss under Rule 12(b)(6), a

complaint must contain sufficient factual matter, acceptable as

true, to “state a claim to relief that is plausible on its

face.”’”   Anderson v. Holder, 691 F. Supp. 2d 57, 61 (D.D.C.

2010) (brackets omitted) (quoting Ashcroft v. Iqbal, 129 S. Ct.


     1
       Midland also argues that its motion should be granted
because Jiggetts’s opposition brief was not timely filed. (Def.
Midland Mortgage Co.’s Reply to Opp’n to Mot. to Dismiss at 1.)
Although Jiggetts’s opposition was filed beyond the time
prescribed by the local civil rules, the circumstances here
support abiding by the general judicial preference for resolving
disputes on their merits rather than dismissing them based on
technicalities. See, e.g., Niedermeier v. Office of Baucus, 153
F. Supp. 2d 23, 27 (D.D.C. 2001).
                                  -4-

1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.

544, 556 (2007))).    A court considering a 12(b)(6) motion takes

all factual assertions within the complaint as true and gives a

plaintiff “‘the benefit of all inferences that can be derived

from the facts alleged.’”    Id. (quoting Holy Land Found. for

Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003)).

Those inferences, however, must be supported by the facts

alleged, and merely asserting legal conclusions as facts will not

suffice.   Id.   “[A] court ‘may consider only the facts alleged in

the complaint, any documents either attached to or incorporated

in the complaint and matters of which [a court] must take

judicial notice.’”    U.S. ex rel. Westrick v. Second Chance Body

Armor, Inc., 685 F. Supp. 2d 129, 133 (D.D.C. 2010) (alteration

in original) (quoting Trudeau v. FTC, 456 F.3d 178, 183 (D.C.

Cir. 2006)).     A document outside the complaint may be considered

on a motion to dismiss under Rule 12(b)(6) if it is “referred to

in the complaint and [is] integral to” the plaintiff’s claim.

Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004).

I.   TRESPASS CLAIM

     Under District of Columbia law, “‘[a] trespass is an

unauthorized entry onto property that results in interference

with the property owner’s possessory interest therein.’”    Sarete,

Inc. v. 1344 U St. Ltd. P’ship, 871 A.2d 480, 490 (D.C. 2005)

(quoting Richard R. Powell, Powell on Real Property § 64A.02[1]
                                 -5-

at 64A-16 (Michael A. Wolf ed., 2000)).    Jiggetts contends that

Midland trespassed on her property when it entered her property

and changed the locks.   Midland does not dispute that it entered

the property and changed the locks.    Its sole argument against

Jiggetts’s trespass claim is that its entry was lawful because

Jiggetts abandoned the property.   (Def.’s Mem. at 3-4.)

     Midland’s argument is misguided, however.    In the District

of Columbia, abandonment is defined as an anticipatory breach

wherein a tenant “‘leaves the premises vacant with the avowed

intention not to be bound by [the] lease.’”    Jones v. Cain, 804

A.2d 322, 331 (D.C. 2001) (quoting Simpson v. Lee, 499 A.2d 889,

894 (D.C. 1985)).   The complaint does not allege or concede facts

reflecting that Jiggetts intended to abandon her property.

Instead, the complaint reflects that Jiggetts had every intention

of maintaining the monthly mortgage payments.    (See, e.g., Compl.

¶ 5 (“While [Jiggetts was] in the nursing home, Chesley was

supposed to be making the monthly mortgage payments on the

subject property.”).)    Moreover, while Midland claimed that the

deed of trust authorized Midland to enter the property upon

default (see id. ¶ 11), Midland has not presented any copy of the

deed of trust mentioned in the complaint or any other agreement

granting it the right to enter the property upon Jiggetts’s

failure to make the mortgage payments.    Because Jiggetts has pled

that Midland entered her property without consent and changed the
                                   -6-

locks, preventing entry by the owners, and Midland has failed to

show it was otherwise authorized to take that action, Midland’s

motion to dismiss Jiggetts’s trespass claim will be denied.

II.   CONVERSION CLAIM

      Under District of Columbia law, conversion is defined as the

“‘intentional exercise of dominion or control over a chattel

which so seriously interferes with the right of another to

control it that the actor may justly be required to pay the other

the full value of the chattel.’”      Edmonds v. United States, 563

F. Supp. 2d 196, 202 (D.D.C. 2008) (quoting Fed. Fire Protection

Corp. v. J.A. Jones/Tompkins Builders, Inc., 267 F. Supp. 2d 87,

92 n.3 (D.D.C. 2003)).      A chattel is defined as “‘[m]ovable or

transferable property; personal property; . . . [or] a physical

object . . .   not the subject matter of real property.’”       Doe ex

rel. Doe v. Fed. Express Corp., 571 F. Supp. 2d 330, 333

(D. Conn. 2008) (quoting Black’s Law Dictionary (8th ed. 2004))

(first alteration in original).      Jiggetts argues that the

defendant “converted [her] leasehold interest, in the subject

property, to [its] own interest” by entering the property and

changing the locks.      (Pl.’s Opp’n at 3.)   However, the leasehold

interest in her home is the subject matter of real property and

is not chattel, see District Of Columbia v. Place, 892 A.2d 1108,

1112 (D.C. 2006), and the law of conversion does not apply to
                                -7-

real property.   Midland’s motion to dismiss Jiggetts’s conversion

claim will be granted.

III. BREACH OF CONTRACT CLAIM

     A contract is formed when there is an offer, an acceptance,

and valuable consideration, see Paul v. Howard Univ., 754 A.2d

297, 311 (D.C. 2000), and a contract can be made orally or in

writing.   See Ames v. HSBC Bank USA, N.A., Civil Action No. 06-

2039 (RMC), 2007 WL 1404443, at *2 (D.D.C. May 11, 2007).    The

complaint alleges that Midland “agreed to postpone the

foreclosure until August 19, 2009, in order to allow [Dixon] to

attempt to sell the property to avoid the foreclosure” and that

the defendant breached an agreement when it entered the property

and changed the locks.   (Compl. ¶¶ 10, 22.)   Midland contends

that the breach of contract claim must be dismissed because

“plaintiff attaches no proof of such an agreement to the

Complaint.”   (Def.’s Mem. at 6.)

     On a motion to dismiss, a plaintiff is not required to prove

each element of her claim.   Instead, she is merely required to

plead facts that, if proven, would establish the elements of her

claim.   Moreover, while Jiggetts fails to plead facts reflecting

that Midland breached an agreement to postpone the foreclosure

sale because she does not allege that a foreclosure sale took

place before August 19, 2009, Jiggetts’s complaint can be read to

state a claim that Midland breached the parties’ mortgage
                                -8-

agreement.   The complaint refers generally to a contract and

states that Midland breached an agreement by breaking into and

changing the locks on the doors.   (Compl. ¶ 22.)   Further,

Jiggetts’s opposition states that “[w]hen the Defendant changed

the locks . . . without an order of the court to do so, it was a

breach of their mortgage contract[.]”   (Pl.’s Opp’n at 4.)

Because a court is to grant the plaintiff the benefit of all

inferences derived from the facts alleged, and the complaint --

read in the light most favorable to Jiggetts –- contains

sufficient factual matter to state a claim for breach of the

parties’ mortgage agreement, Midland’s motion to dismiss

Jiggetts’s breach of contract claim will be denied.2


     2
       Plaintiff seeks punitive damages on each of her claims
(Compl. ¶¶ 16, 19, 24), which the defendant opposes. In the
District of Columbia, “punitive damages are not available [w]here
the basis of a complaint is . . . breach of contract[,]” Caston
v. Butler, Civil Action No. 08-1656 (JDB), 2010 WL 2505591, at *1
(D.D.C. June 22, 2010) (first alteration in original) (internal
quotation marks omitted), unless the plaintiff alleges that the
breach of contract “‘merges with, and assumes the character of a
willful tort[.]’” Cambridge Holdings Group, Inc. v. Fed. Ins.
Co., 357 F. Supp. 2d 89, 97 (D.D.C. 2004) (quoting Brown v.
Coates, 253 F.2d 36, 39 (D.C. Cir. 1958)). Further, in order to
recover punitive damages, “[plaintiff] must ‘prove, by a
preponderance of the evidence, that the [defendant] committed a
tortious act, and by clear and convincing evidence that the act
was accompanied by conduct and a state of mind evincing malice or
its equivalent.’” Butera v. District of Columbia, 235 F.3d 637,
657 (D.C. Cir. 2001) (quoting Jonathan Woodner Co. v. Breeden,
665 A.2d 929, 938 (D.C. 1995)). The tortious act must be
accompanied by “fraud, ill will, recklessness, wantonness,
oppressiveness, wilful disregard of the plaintiff’s right, or
other circumstances tending to aggravate the injury.” Id.
(internal quotation marks omitted). Jiggetts alleges that the
defendant’s trespass was “willful, wanton, intentional, [and]
                                  -9-

                      CONCLUSION AND ORDER

     Because conversion applies only to chattel, Midland’s motion

to dismiss Jiggetts’s conversion claim will be granted.    However,

the complaint alleges a trespass and, read in the light most

favorable to Jiggetts, a breach of contract claim.    Thus,

Midland’s motion to dismiss Jiggetts’s trespass and breach of

contract claims will be denied.     Accordingly, it is hereby

     ORDERED that Midland’s motion [5] to dismiss be, and hereby

is, GRANTED in part and DENIED in part.    Jiggetts’s conversion

claim is dismissed, but Midland’s motion is denied in all other

respects.

     SIGNED this 29th day of June, 2010.



                                      /s/
                              RICHARD W. ROBERTS
                              United States District Judge




malicious” (Compl. ¶ 15), and that her breach of contract claim
“merges with and assumes the character of a willful tort.” (Id.
¶ 24.) Such allegations, if proven, could entitle her to
punitive damages. Thus, defendant’s motion to dismiss Jiggetts’s
punitive damages claim will be denied.
