Case 1:12-cv RWZ Document 14 Filed 06/28/12 Page 1 of 5 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

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1 Case 1:12-cv RWZ Document 14 Filed 06/28/12 Page 1 of 5 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CHERYL MILLER, on behalf of herself and all others similarly situated, v. Plaintiff, EQUITY RESIDENTIAL MANAGEMENT LLC, Civil Action No. 1:12-cv RWZ Reply Memorandum (Leave to file granted 6/28/2012) Defendant. REPLY MEMORANDUM IN SUPPORT OF EQUITY RESIDENTIAL MANAGEMENT, L.L.C. S MOTION TO DISMISS PLAINTIFF S CLASS ACTION COMPLAINT Defendant Equity Residential Management, L.L.C. ( Equity Residential Management or Defendant ) submits this reply memorandum in support of its Motion to Dismiss the Class Action Complaint of Cheryl Miller ( Miller or Plaintiff ) and states as follows: I. The Result in Hermida Does Not Control the Result in this Case. Plaintiff improperly jumps to the merits of her claim by suggesting that the result reached in Hermida v. Archstone, 826 F. Supp. 2d 380 (D. Mass. 2011), should also control the result in this case. See Plaintiff s Opposition Memorandum ( Plaintiff s Opp. ) at 2 and nn Plaintiff note[s] that in Hermida, Judge William Young recently granted summary judgment to Plaintiffs in a case that presented the precise legal issues raised here. Id. The precise legal issues raised here, however, have nothing to do with Judge Young s grant of summary judgment in the Hermida case. The only legal issue before this Court is a limited one, namely, whether or not Equity Residential Management is a proper defendant. Any decision as to whether Equity Residential Management, assuming it is deemed a proper defendant, violated

2 Case 1:12-cv RWZ Document 14 Filed 06/28/12 Page 2 of 5 either G.L. c. 186, 15B(1)(b), or G.L. c. 93A, 9(3), improperly puts the merits before the pleadings. Furthermore, even if this case were identical to Hermida (and it is not), Judge Young s decision in that case would be neither authoritative nor precedential. See Vertex Surgical, Inc. v. Paradigm Biodevices, Inc., 648 F. Supp. 2d 226, 231 (D. Mass. 2009) ( The judgments of nisi prius courts generally are not precedential as that term is conventionally understood.... Authoritative precedent for use by all nisi prius courts federal and state is generated by appellate courts. ); see also Mueller v. Reich, 54 F.3d 438, 441 (7th Cir. 1995) ( District court decisions are not authority as precedents, even at the district court level. ) (Posner, C.J.). Indeed, Judge Young made explicit in Hermida that his decision was one of first impression, subject to appeal to the First Circuit or certification to the Supreme Judicial Court. 826 F. Supp. 2d at 381 ( This is a case of first impression. ); id. at 387 n.3 ( This Court is aware that here there is no controlling precedent.... Should either the Hermidas or Archstone wish to bring a motion for certification, this Court will entertain it. ). 1 Equity Residential Management intends to argue if its Motion to Dismiss is denied and the case proceeds beyond the pleadings that the Hermida court s interpretation of G.L. c B(1)(b) as it applies to so-called amenity fees is incorrect for a variety of reasons. Finally, Plaintiff neglects to point out that Judge Young respected the corporate form in Hermida by restricting the plaintiffs class in that case to all persons having paid amenity fees to a particular defendant with whom the plaintiffs had a contractual relationship, as opposed to a broader class of persons having paid amenity fees at any apartment complex in Massachusetts owned by the defendant or its affiliates. See 826 F. Supp. 2d at 382. That ruling in Hermida is 1 Final judgment in Hermida has not yet entered, and thus any appeal in that case is not ripe. See Docket for Civil Action No. 1:10-cv WGY

3 Case 1:12-cv RWZ Document 14 Filed 06/28/12 Page 3 of 5 far more relevant to the legal issues presented in Defendant s instant Motion to Dismiss (which relates to the distinction between the true owner of Plaintiff s apartment complex, as opposed to the management company) than is any ruling on the merits. II. Paragraph 30 of Plaintiff s Lease Contract is Not Void and Unenforceable. The Security Deposit Law does indeed contain a clause stating that a tenant cannot waive her statutory rights by entering into a lease contract that conflicts with those rights. See G.L. c. 186, 15(B)(8). Paragraph 30 of the lease Terms and Conditions in this case, however, does not present such a conflict. See Plaintiff s Opp. at 4 (quoting lease language). Paragraph 30 certainly does not require Plaintiff to waive her statutory rights entirely; it simply limits her recovery as to those statutory rights or any others to the owner s interest in the Community. Via Paragraph 30, Miller expressly agreed to vindicate her rights regardless of the source of those rights against the owner of the Community in which she lived (Emerson Place, owned by ERP Operating Limited Partnership), as opposed to against any other entity, including the management company for Emerson Place (Equity Residential Management). 2 Miller is thus left to argue that because the lease contract purportedly identifies Equity Residential Management as lessor, and because the Security Deposit Law imposes obligations on lessors, Paragraph 30 necessarily conflicts with it. This argument rests on the flawed factual assumption that Equity Residential Management is in fact the lessor, as opposed to merely the agent of the lessor. Plaintiff does not deny, nor can she, that this agency relationship was expressly stated in all of her lease documents. See Complaint 6 ( Equity Residential signs 2 For this same reason, Paragraph 30 of the Terms and Conditions signed by Plaintiff is not void as a matter of public policy, and Plaintiff s citation to that line of cases, see Plaintiff s Opp. at 4-5, is inapposite. Nor is Atwood v. Nolan, also cited by Plaintiff, to the contrary. In Atwood, the Hold Harmless Agreement and indemnification provisions were designed to prevent the plaintiff from obtaining any recovery, even statutory recovery, from any defendants. See 1984 Mass. App. Div. at 38. In this case, Paragraph 30 prevents Miller from recovering from Equity Residential Management, but not from other potential defendants

4 Case 1:12-cv RWZ Document 14 Filed 06/28/12 Page 4 of 5 the leases as agent for the owner.... ). Notably, Section 15B(1)(b) of the Security Deposit Law speaks only in terms of what a lessor may require of a tenant or prospective tenant. Other portions of the same statute, however, use decidedly different language by imposing requirements on the lessor or his agent, and not simply the lessor. See, e.g., G.L. c. 186, 15B(2), 15B(5), 15B(7), 15B(7A). The Legislature s use of lessor in some parts of the statute and lessor or his agent in others cannot have been unintentional. Plaintiff wishes to have it both ways: she wishes to focus the Court s attention on the unambiguous language in Section 15B(1)(b), see Plaintiff s Opp. at 2, and yet that section does not encompass acts of the lessor or his agent, but instead only the lessor. This further supports Equity Residential Management s argument that as agent for the true owner (and true lessor) of the property that was leased to Plaintiff, Equity Residential Management is not a proper defendant in this case. III. Plaintiff Makes Improper Use of the Substance of Defendant s Chapter 93A Settlement Offer. Plaintiff s final argument is to suggest that Equity Residential Management is necessarily a proper defendant because it has already made a settlement offer to Plaintiff in response to her Chapter 93A letter. The basic claim is that the named defendant must be the correct defendant because it signed a 93A settlement offer. Plainly, inadmissible evidence is being thrust upon the Court in an effort to prove liability for the named defendant. Fed. R. Evid Furthermore, Plaintiff s statement that Defendant s settlement offer was insufficient is baseless. See Opp. at 8 n.6. Defendant was not required to make an offer to both Miller and her putative class in response to her Chapter 93A letter, at least not in advance of an actual class being certified. See Richards v. Arteva Specialties S.A.R.L., 850 N.E.2d 1068, 1074 (Mass. App. Ct. 2006) ( The plain language of G.L. c. 93A, 9(3)... provides that only a demand letter made on the claimant s own behalf is required to be served on defendants and responded to, at least until a class of petitioners has, at some future period, been certified.... )

5 Case 1:12-cv RWZ Document 14 Filed 06/28/12 Page 5 of 5 CONCLUSION For the reasons stated above, Equity Residential Management s Motion to Dismiss should be granted. Dated: June 28, 2012 Respectfully submitted, EQUITY RESIDENTIAL MANAGEMENT, L.L.C., By its attorneys, /s/ Thomas H. Wintner Craig M. White (pro hac vice) EDWARDS WILDMAN PALMER LLP 225 West Wacker Drive Chicago, IL (312) (telephone) (312) (fax) cwhite@edwardswildman.com Thomas H. Wintner (BBO # ) EDWARDS WILDMAN PALMER LLP 111 Huntington Avenue Boston, Massachusetts (617) (telephone) (617) (fax) twintner@edwardswildman.com CERTIFICATE OF SERVICE I certify that the above document was filed electronically using the CM/ECF system on June 28, 2012, and thereby delivered by electronic means to all counsel of record. /s/ Thomas H. Wintner Thomas H. Wintner - 5 -