United States District Court, E.D. Missouri, Eastern Division
BRIAN FELLOWS, on his own behalf and on behalf of all others similarly situated, Plaintiff,
AMERICAN CAMPUS COMMUNITIES SERVICES, INC., Defendant.
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant American Campus
Communities Services, Inc.'s Motion to Dismiss (Doc. 13).
The motion is fully briefed and ready for
Brian Fellows brought this class action in the St. Louis
County Circuit Court against Defendant American Campus
Communities Services, Inc. (hereinafter referred to as
“Defendant”) asserting claims for violations of
the Missouri Merchandising Practices Act
(“MMPA”), Mo. Rev. Stat. § 407.020 et seq.
(Count I) and unjust enrichment (Count II). He alleges that
Defendant falsely advertises “monthly” lease
rates for its college apartment units and does not disclose
that although the monthly rate is based upon an amount paid
over 12 months, the lease itself only lasts eleven and a half
months. (Complaint (“Compl.”), Doc. 13-1 at
¶¶ 1, 3). Plaintiff further alleges Defendant does
not prorate the advertised rate for one half month, as a
reasonable consumer would expect, thereby resulting in the
student paying 200% of the advertised rent for the first
month. (Compl. at ¶ 3). Plaintiff alleges that while
Defendant's lease “prominently indicates the
monthly payment amount is the same as the advertised
‘monthly' rate, Defendant's lease does not
contain a clear statement disclosing that even though the
tenant will be paying 12 monthly payments, the lease itself
only lasts for eleven and a half months.” (Compl. at
¶ 4). Plaintiff claims the advertisement, paired with
Defendant's failure to disclose these discrepancies in
its lease agreement, allows Defendant to systematically
mislead lessees to believe the lease rate is the same as that
advertised, and the net effect is that the monthly rate is
higher than the advertised rate. (Compl. at ¶ 4).
Defendant removed the matter to this Court on October 14,
2016 (Doc. 1) and has moved to dismiss the Complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6).
ruling on a motion to dismiss, the court must accept the
allegations contained in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party.
Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005)
(internal citations omitted). A dismissal under Rule 12(b)(6)
should be granted “only in the unusual case in which a
plaintiff includes allegations that show, on the face of the
complaint, that there is some insuperable bar to
relief.” Strand v. Diversified Collection Serv.,
Inc., 380 F.3d 316, 317 (8th Cir.2004) (quoting Frey
v. Herculaneum, 44 F.3d 667, 671 (8th Cir.1995)). The
issue on a motion to dismiss is not whether the plaintiff
will ultimately prevail, but whether the plaintiff is
entitled to present evidence in support of his or her claim.
Schuer v. Rhodes, 416 U.S. 232, 236 (1976). However,
to avoid dismissal under Rule 12(b)(6), “the complaint
must contain facts which state a claim as a matter of law and
must not be conclusory.” Briehl v. Gen. Motors
Corp., 172 F.3d 623, 627 (8th Cir.1999) (internal
initial matter, the Court must determine whether documents
not attached to the Complaint may be properly considered in
resolving this motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). “Though matters outside the
pleading may not be considered in deciding a Rule 12 motion
to dismiss, documents necessarily embraced by the complaint
are not matters outside the pleading.” Gorog v.
Best Buy Co., 760 F.3d 787, 791 (8th Cir. 2014) (quoting
Ashanti v. City of Golden Valley, 666 F.3d 1148,
1151 (8th Cir. 2012)). The “contracts upon which a
claim rests are evidently embraced by the pleadings.”
Id. (citation omitted). “In a case involving a
contract, the court may examine the contract documents in
deciding a motion to dismiss.” Stahl v. U.S.
Dep't of Agric., 372 F.3d 697, 700 (8th Cir. 2003).
Plaintiff argues that the focus of his lawsuit is
Defendant's marketing of rental units, rendering the
contents of the lease “largely immaterial.”
However, Plaintiff's Complaint repeatedly references the
contents of the lease agreement and its terms. Furthermore,
central to Plaintiff's claims is his contention that the
terms of the lease agreement do not comport with
Defendant's advertisements, resulting in Defendant's
violation of the MMPA and unjust enrichment. Plaintiff's
insistence that the lease agreement and its contents are
irrelevant to his claim is unpersuasive. The Court finds the
lease agreement is necessarily embraced by the pleadings and
may be considered.
MMPA - Count I
MMPA, as first adopted by the legislature in 1967, protects
consumers by expanding the common law definition of fraud
“to preserve fundamental honesty, fair play and right
dealings in public transactions.” Murphy v.
Stonewall Kitchen, LLC, 503 S.W.3d 308, 310-11
(Mo.Ct.App. 2016) (citing State ex rel. Danforth v.
Independence Dodge, Inc., 494 S.W.2d 362, 368 (Mo. App.
1973)). To state a claim under the MMPA, a plaintiff must
show that (1) he purchased merchandise from the defendant;
(2) for personal, family, or household purposes; and (3)
suffered an ascertainable loss; (4) as a result of an
unlawful practice. Mo. Rev. Stat. § 407.025(1). The MMPA
is a broad statute, prohibiting “[t]he act, use or
employment by any person of any deception, fraud, false
pretense, false promise, misrepresentation, unfair practice,
or the concealment, suppression, or omission of any material
fact in connection with the sale or advertisement of any
merchandise in trade or commerce....” Mo. Rev. Stat.
argues that, as a matter of law, Plaintiff cannot establish
the requisite element of causation because Plaintiff signed a
lease agreement that prominently set forth the monthly
payment amount and the start and end dates, thereby defeating
Plaintiff's ability to show an ascertainable loss
resulting from the advertisement. Defendant likens this case
to Padberg v. Dish Network LLC, No.
11-04035-CV-C-NKL, 2012 WL 2120765, at *6 (W.D. Mo. June 11,
2012). Padberg involved a plaintiff who was first
shown misleading advertisements and then read and signed a
contract explicitly stating the defendant was not obligated
to perform as advertised. Id. at *6. The court found
that the intervening factor of the plaintiff reading and
signing the contract meant that plaintiff could not, as a
matter of law, show an ascertainable loss “resulting
from” the defendant's actions as alleged.
Id. at *6. Plaintiff argues in response that he has
adequately pled the requisite elements under the MMPA and set
forth facts sufficient to survive a motion to dismiss.
Court's focus when ruling on a motion to dismiss is not
whether Plaintiff will ultimately prevail, but whether
Plaintiff is entitled to present evidence in support of his
Padberg is instructive, the Court is persuaded by
the fact that the other cases cited by the parties were
resolved on summary judgment, not motions to dismiss. In
Chochorowski v. Home Depot U.S.A., 404 S.W.3d 220
(Mo. 2013), the plaintiff rented a tiller from the defendant
by signing a contract agreeing to pay an optional damage
waiver fee. On summary judgment, the Supreme Court of
Missouri ultimately concluded that the plaintiff merely
wanted relief from her failure to read the rental agreement
before she executed it, which did not fall within the
protections of the MMPA. Id. Similarly, while it
appears Plaintiff in this case may ...