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CIVIL COVER SHEET
(SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS
(b)(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
(c) (Firm Name, Address, and Telephone Number) (If Known)
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)
PTF DEF PTF DEF(U.S. Government Not a Party) or
and(Indicate Citizenship of Parties in Item III)
IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
PERSONAL INJURY PERSONAL INJURY
PROPERTY RIGHTS
LABOR SOCIAL SECURITY PERSONAL PROPERTY
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS FEDERAL TAX SUITSHabeas Corpus:
IMMIGRATIONOther:
V. ORIGIN (Place an “X” in One Box Only)
(specify)
VI. CAUSE OF ACTION(Do not cite jurisdictional statutes unless diversity)
VII. REQUESTED IN COMPLAINT:
CLASS ACTION DEMAND $JURY DEMAND:
VIII. RELATED CASE(S) IF ANY (See instructions):
FOR OFFICE USE ONLY
CARA BARBER, MELISSA JONES, MELISSA STREETER AND KATIEECKROTH, On Behalf of Themselves and All Others Similarly Situated,
See attachment
OHANA MILITARY COMMUNITIES, LLC, FOREST CITYRESIDENTIAL MANAGEMENT, INC.; and DOE DEFENDANTS 1-10,
See attachment
28 U.S.C. 1332(d)
Class Action Fairness Act
05/06/2014 /s/ Christine A. Terada
Case 1:14-cv-00217 Document 1-6 Filed 05/06/14 Page 1 of 2 PageID #: 53
ATTORNEYS FOR CLASS PLAINTIFFS P. Kyle Smith, Esq. Lynch Hopper Salzano & Smith 970 N. Kalaheo Ave., Suite A301 Kailua, HI 96734 Telephone: (808) 791-9555 and Terrance M. Revere, Esq. Malia R. Nickison-Beazley, Esq. Revere & Associates Pali Palms Plaza 970 N. Kalaheo Ave., Suite A301 Kailua, HI 96734 Telephone: (808) 791-9550
ATTORNEYS FOR DEFENDANTS OHANA MILITARY COMMUNITIES, LLC and FOREST CITY RESIDENTIAL MANAGEMENT, INC. GOODSILL ANDERSON QUINN & STIFEL LLPLISA WOODS MUNGER 3858-0 RANDALL C. WHATTOFF 9487-0 CHRISTINE A. TERADA 10004-0 First Hawaiian Center, Suite 1600 999 Bishop Street Honolulu, Hawaii 96813 Telephone: (808) 547-5600
Case 1:14-cv-00217 Document 1-6 Filed 05/06/14 Page 2 of 2 PageID #: 54
4769301.1
GOODSILL ANDERSON QUINN & STIFEL A LIMITED LIABILITY LAW PARTNERSHIP LLP
LISA WOODS MUNGER 3858-0 [email protected] RANDALL C. WHATTOFF 9487-0 [email protected] CHRISTINE A. TERADA 10004-0 [email protected] First Hawaiian Center, Suite 1600 999 Bishop Street Honolulu, Hawaii 96813 Telephone: (808) 547-5600 Facsimile: (808) 547-5880
Attorneys for Defendants OHANA MILITARY COMMUNITIES, LLC, FOREST CITY RESIDENTIAL MANAGEMENT, INC.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CARA BARBER, MELISSA JONES, MELISSA STREETER AND KATIE ECKROTH, On Behalf of Themselves and All Others Similarly Situated,
Class Plaintiffs,
vs.
OHANA MILITARY COMMUNITIES, LLC, FOREST CITY RESIDENTIAL MANAGEMENT, INC.; and DOE DEFENDANTS 1-10,
Defendants.
CV 14-217
DEFENDANTS OHANA MILITARY COMMUNITIES, LLC, AND FOREST CITY RESIDENTIAL MANAGEMENT, INC.’S NOTICE OF REMOVAL; DECLARATION OF TINA JACOBS; DECLARATION OF GENEVIEVE BAUER; DECLARATION OF CHRISTINE A. TERADA; EXHIBITS A - B; CERTIFICATE OF SERVICE
Case 1:14-cv-00217 Document 1 Filed 05/06/14 Page 1 of 16 PageID #: 1
2
DEFENDANTS OHANA MILITARY COMMUNITIES, LLC AND FOREST CITY RESIDENTIAL MANAGEMENT, INC.’S
NOTICE OF REMOVAL
PLEASE TAKE NOTICE that Defendants Ohana Military
Communities, LLC and Forest City Residential Management, Inc. (collectively
“Ohana”) hereby petition the United States District Court for the District of
Hawaiʻi for removal of the above-captioned state court action, Civil No. 14-1-
0850-04 JHC, from the Circuit Court of the First Circuit, State of Hawaiʻi,
pursuant to 28 U.S.C. §§ 1332, 1441, 1446 and 1453.
This case squarely meets the requirements for removal under the Class
Action Fairness Act of 2005 (“CAFA”), codified at 28 U.S.C. §§ 1332(d) and
1453, because the amount in controversy exceeds the sum or value of $5 million
exclusive of interest and costs, a member of the class of plaintiffs is a citizen of a
state different from a defendant, and the number of all proposed plaintiff class
members in the aggregate is more than 100. Moreover, since less than one-third of
the putative class members are citizens of the state where the action was filed,
removal is non-discretionary.
I. STATUS OF PROCEEDINGS IN STATE COURT
1. On April 3, 2014, Plaintiffs Cara Barber, Melissa Jones,
Melissa Streeter, and Katie Eckroth (collectively “Plaintiffs”) commenced an
Case 1:14-cv-00217 Document 1 Filed 05/06/14 Page 2 of 16 PageID #: 2
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action in State Court by filing the above-entitled Class Action Complaint
(“Complaint”) in the Circuit Court of the First Circuit, State of Hawaii, Civil No.
14-1-0850-04-JHC (the “Action”). The Complaint alleges the following counts:
(1) Breach of Contract; (2) Tortious Breach of Contract; (3) Breach of Implied
Warranty of Habitability; (4) Violation of Hawai‘i Revised Statute Chapter 521 –
Landlord Tenant Code; (5) Unfair and Deceptive Trade Practices; (6) Negligence;
(7) Negligent and Intentional Infliction of Emotional Distress; (8)
Fraud/Intentional Misrepresentation; (9) Negligent Misrepresentation; and (10)
Prima Facie Tort.
2. With the Complaint, Plaintiffs also included a Summons and a
Demand for Jury Trial. A true and correct copy of the Complaint, Summons, and
Demand for Jury Trial are attached hereto as Exhibit A. Terada Decl., ¶ 2.
Exhibit A constitutes all of the pleadings served upon Ohana Military
Communities, LLC and Forest City Residential Management, Inc. in this action,
and all of the documents in the State Court docket. Id. at ¶ 3.
3. Plaintiffs served the Complaint on Ohana Military
Communities, LLC and Forest City Residential Management, Inc. by serving CT
Corporation System, the registered agent for service of process, in Hawaiʻi on
April 16, 2014. Therefore, this Notice of Removal, filed on May 6, 2014, is timely
filed pursuant to 28 U.S.C. §§ 1446(b) and 1453(b).
Case 1:14-cv-00217 Document 1 Filed 05/06/14 Page 3 of 16 PageID #: 3
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II. VENUE
4. Venue lies in the United States District Court for the District of
Hawaiʻi pursuant to 28 U.S.C. §§ 1441(a) and 1446(a). This action was originally
brought in the Circuit Court of the First Circuit, State of Hawaiʻi.
III. GROUNDS FOR REMOVAL
5. This is a civil action over which this Court has original
jurisdiction and in which Ohana may remove to this Court pursuant to CAFA.
Pursuant to 28 U.S.C. §§ 1332(d)(2), 1332(d)(2)(A) and 1332(d)(5)(B), original
jurisdiction extends to class actions, such as the present one, in which (1) the
matter in controversy exceeds the sum or value of $5 million, exclusive of interest
and costs; (2) any member of the class of plaintiffs is a citizen of a state different
from any defendant; and (3) the number all proposed plaintiff class members in the
aggregate is more than 100.
6. Once these three pre-requisites are met, CAFA requires the
Court to look at the citizenship of the putative class members. Where less than
one-third of the putative class members are citizens of the forum state, removal is
mandatory. 15 Moore’s Federal Practice - Civil § 102.26 (Online ed. 2014)
(“[W]hen one-third or fewer of the class members are citizens of the original forum
state, federal courts must exercise jurisdiction over the class action. CAFA does
not permit federal courts to decline to exercise jurisdiction in this situation.”)
Case 1:14-cv-00217 Document 1 Filed 05/06/14 Page 4 of 16 PageID #: 4
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(emphasis added, citation omitted). Where between one-third and two-thirds of the
putative class members are citizens of the forum state, and where all of the
“primary defendants” are citizens of the forum state, “[a] district court may, in the
interests of justice and looking at the totality of the circumstances, decline to
exercise jurisdiction.” 28 U.S.C. § 1332(d)(3). Finally, where greater than two-
thirds of the putative class members are citizens of the forum state, the Court is
generally required to decline jurisdiction under what is known as the “home state
controversy” and “local controversy” exceptions. 28 U.S.C. §§ 1332(d)(4)(A)-(B).
7. Here, as discussed at length below, removal is mandatory
because the case clearly meets the jurisdictional pre-requisites and because less
than one-third of the putative class members are citizens of Hawai‘i. Moreover,
even if Plaintiffs could somehow show that more than one-third of the putative
class members are citizens of Hawai‘i, the interests of justice do not support
remand given the unique status of the putative class of military service members
and their families.
A. The Amount In Controversy Exceeds $5 Million
8. CAFA requires a $5 million jurisdictional minimum for class
action removal. 28 U.S.C. § 1332(d)(2). The claims of the individual class
members are aggregated to determine whether the matter in controversy exceeds
this amount. 28 U.S.C. § 1332(d)(6). Interest and costs are excluded, id., but
Case 1:14-cv-00217 Document 1 Filed 05/06/14 Page 5 of 16 PageID #: 5
6
Courts do include punitive damages and attorneys’ fees, Richmond v. Allstate Ins.
Co., 897 F. Supp. 447, 449-50 (S.D. Cal. 1995). Where the complaint fails to
plead a specific amount of damages, the defendant seeking removal must establish
that it is “more likely than not” that the amount in controversy exceeds the
jurisdictional minimum. Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404
(9th Cir. 1996).
9. It is clear that the amount placed in controversy by the
Complaint exceeds the jurisdictional minimum. By their Complaint, Plaintiffs
seek alleged damages for overpaid rent, future medical expenses and medical
monitoring for a proposed class consisting of “thousands of current and former
tenants.” Compl., ¶¶ 15, 47, 56, 68, 76, 86, 93, 104, 114, 125, 135. Plaintiffs also
request special, treble, consequential, exemplary and punitive damages, as well as
attorneys’ fees. Comp., ¶¶ 48-50, 57-61, 67-69, 74-77, 85-87, 92-96, 105-07, 116-
18, 127-29, 137-39; Prayer for Relief, ¶ 2, 3, 6.
10. Plaintiffs define the class as “All former and present persons
who have leased or resided in residential property from Ohana MC at Marine Corp
Base Hawaii in Kaneohe, Hawaii, from 2006 to the present.” Compl., ¶ 14. From
January 1, 2006 through March 31, 2014, there were approximately 6,400 military
service members (not including dependents) who lived at MCBH, Jacobs Decl., ¶
7, and there are 2,232 military service members (not including dependents)
Case 1:14-cv-00217 Document 1 Filed 05/06/14 Page 6 of 16 PageID #: 6
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currently living at MCBH, id. at ¶ 6. Therefore, there are at least 8,632 potential
class members (and likely significantly more once dependents are included).
11. A proposed class consisting of approximately 8,632 former and
current military service members (not including dependents), means that each
individual class member would only need a claim for $580 in order to meet the
jurisdictional minimum. Moreover, if each military member had only one
dependent living with them at MCBH, that would bring the number of potential
class members under Plaintiffs’ proposed definition to 17,264, which would only
require a claim for $290 per person to reach the jurisdictional minimum.
12. Accordingly, the broad scope of damages asserted in the
Complaint—which includes overpaid rent, future medical expenses and medical
monitoring—as well as Plaintiffs’ claim for attorneys’ fees, multiplied by each
potential member of the proposed class, clearly exceeds the jurisdictional
minimum of $5 million set forth in 28 U.S.C. § 1332(d)(2).
B. Minimal Diversity
13. The Complaint, on its face, satisfies the minimal diversity
requirement of 28 U.S.C. § 1332(d)(2), which requires that any member of the
plaintiff class be a citizen of a different state than any defendant.
14. Pursuant to 28 U.S.C. § 1332(c)(1), Ohana Military
Communities, LLC is a citizen of the State of Hawaiʻi and the State of Ohio
Case 1:14-cv-00217 Document 1 Filed 05/06/14 Page 7 of 16 PageID #: 7
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because its Articles of Organization were filed in the State of Hawaiʻi and its
principal place of business is in the State of Ohio. Bauer Decl., ¶¶ 6-7. Forest City
Residential Management, Inc., is a citizen of the State of Ohio because it is a
corporation incorporated and with its principal place of business in the State of
Ohio. Id. at ¶¶ 8-9; 28 U.S.C. § 1332(c)(1).
15. The proposed class consists of “[a]ll former and present
persons” who lived on MCBH from 2006 to the present. Compl., ¶ 14. Although
the Complaint fails to assert the citizenship of the proposed class members, id. at
¶¶ 14-15, minimal diversity is demonstrated by the fact that many of the former
tenants are citizens of states other than Hawai‘i and Ohio—indeed, all 50 states are
represented in the forwarding addresses left by former tenants, Jacobs Decl., ¶ 8.
Therefore, the minimal diversity requirement is satisfied because there are
members of the plaintiff class who are citizens of states other than Hawaiʻi and
Ohio.
C. The Proposed Class Consists of More Than 100 Members
16. 28 U.S.C. § 1332(d)(5)(B) requires that the number of members
of all proposed plaintiff classes in the aggregate be more than 100. Because the
Complaint alleges that the proposed plaintiff class “consists of thousands of current
and former tenants who lived on MCHB from 2006 to present,” 28 U.S.C. §
1332(d)(5)(B) is satisfied. Compl., ¶ 15.
Case 1:14-cv-00217 Document 1 Filed 05/06/14 Page 8 of 16 PageID #: 8
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D. Removal Is Mandatory Because Less Than One-Third of the Proposed Class Members Are Citizens of the State of Hawaiʻi
17. Where the requirements of CAFA are met, and where less than
one-third of the putative class members are citizens of the state where the action
was filed, removal is mandatory. See, e.g., Steinberg v. Nationwide Mut. Ins. Co.,
418 F. Supp. 2d 215, 218 (E.D.N.Y. 2006). Therefore, the Court has jurisdiction
over the present case, since less than one-third of the proposed class members are
citizens of the State of Hawaiʻi.
18. It is well settled that citizenship for purposes of diversity means
domicile rather than residence. See, e.g., Stifel v. Hopkins, 477 F.2d 1116, 1120
(6th Cir. 1973) (citing Gilbert v. David, 235 U.S. 561, 569 (1915)). “To acquire
domicile within a particular state, a person must be physically present in the state
and must have either the intention to make his home there indefinitely or the
absence of an intention to make his home elsewhere.” Id. (citing Gilbert, 235 U.S.
at 569-70). Residency alone is not sufficient to demonstrate intent to remain; only
domicile is determinative. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th
Cir. 2001).
19. It is widely recognized that military service members do not
automatically establish a new domicile at the state in which they are stationed.
It makes eminent good sense to say as a matter of law that one who is in a place solely by virtue of superior force exerted by another should
Case 1:14-cv-00217 Document 1 Filed 05/06/14 Page 9 of 16 PageID #: 9
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not be held to have abandoned his former domicile . . . . The most obvious example is the serviceman. It has long been the rule that presence at his military station, without more, cannot make the station his domicile because a serviceman is subject to the orders of his superior officer. A corollary of this rule is that a serviceman who lives on the military base, even if his family is living on-base with him, cannot establish a domicile at the base.
Stifel, 477 F.2d at 1121-22 (emphasis added) (citations omitted). The presumption
is rebuttable only by a showing of “clear and unequivocal evidence” of intent to
make a home in the place of military service. See, e.g., Rosado-Marrero by
Rosado-Cancel v. Hospital San Pablo, 927 F. Supp. 576, 577 (D.P.R. 1996);
Volmer v. Volmer, 371 P.2d 70, 72 (Or. 1962) (“[T]he ordinary conduct of a person
residing in this state incident to a military assignment here does not constitute
sufficient evidence of the necessary domiciliary intent. To be relevant, conduct
must be probative of intent, and not merely an incident of living in a given place.”)
(Emphasis added).
20. Here, significantly less than one-third of MCBH’s former
tenants have evidenced an intent to stay in Hawaiʻi upon expiration of their orders.
Once a service member’s order expires, he or she moves out of base housing, such
as MCBH. Ohana maintains a business record of forwarding addresses for the
military service members when this occurs. Jacobs Decl., ¶¶ 4, 8. Of the
approximately 5,749 military members who leased units at MCBH between
January 1, 2006 and March 31, 2014 and provided forwarding addresses, only
Case 1:14-cv-00217 Document 1 Filed 05/06/14 Page 10 of 16 PageID #: 10
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1,131 of those individuals—19.67 percent—provided forwarding addresses located
in the State of Hawaiʻi upon move-out. Id. at ¶ 8. Therefore, at most only 19.67
percent, far less than one-third, of the military members who lived at MCBH
intended to establish a domicile in the State of Hawaiʻi.
21. Since forwarding addresses are only available for former
tenants, home phone numbers of current tenants may be evidence of whether they
intend to establish a permanent domicile in Hawaiʻi. Only 238 of the military
members currently leasing units at MCBH—11.53 percent—out of a total of 2,064
of those who provided home phone numbers when they moved into MCBH
obtained a Hawaiʻi number. Id. at ¶ 9-10.
22. Given the forwarding addresses of former tenants, as well as the
home phone numbers of current tenants, the evidence shows that more than two-
thirds of the military members stationed in Hawaiʻi, and their dependents, do not
consider Hawaiʻi their permanent home and cannot be considered citizens of the
state. Therefore, the Court has mandatory jurisdiction because the class action
meets the minimal diversity requirement and less than one-third of the proposed
class members are citizens of the State of Hawaiʻi.
Case 1:14-cv-00217 Document 1 Filed 05/06/14 Page 11 of 16 PageID #: 11
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E. Even if Removal Was Not Mandatory, the “Interests of Justice” Do Not Require Remand in This Case
23. However, even if the Court somehow finds that more than one-
third of the plaintiffs are Hawaiʻi citizens, this is not a case where the “interests of
justice” require remand.
24. First, to the extent that the one-third amount is exceeded, the
data on forwarding addresses and phone numbers suggests that it would be
minimal. In such an event, the Court should consider how often military members
and their dependents are stationed in different states or countries for only a few
years before moving to a new location. Military members and their families are a
highly mobile population, and the case law demonstrates that they cannot be
presumed to adopt a new citizenship each time they receive orders to relocate.
25. Second, the purpose of the Class Action Fairness Act is to
“expand[] federal jurisdiction over class actions and facilitate[] their removal.” In
re DirecTV Early Cancellation Litig., 738 F. Supp. 2d 1062, 1072 (C.D. Cal. 2010)
(emphasis added), rev’d on other grounds, 2013 U.S. App. LEXIS 23952 (9th Cir.
2013) (citation omitted); see also West Virginia ex rel. McGraw v. Comcast Corp.,
705 F. Supp. 2d 441, 449 (E.D. Pa. 2010) (“With … significant changes in place,
federal courts have jurisdiction over more class action suits than they did prior to
CAFA’s enactment, which was Congress’s intent.”).
Case 1:14-cv-00217 Document 1 Filed 05/06/14 Page 12 of 16 PageID #: 12
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26. Third, the nature of this dispute is uniquely federal. All of the
residences in questions are on land owned by the federal government; defendant
Ohana Military Communities, LLC is a public-private partnership between a
private entity and the federal government; the housing at issue is a product of a
unique federal statute known as the Military Housing Privatization Initiative; and
all of the purported class members are federal service members or their family
members. Given the numerous unique federal issues in this case, the federal court
is the appropriate forum to litigate it.
IV. NOTICE TO ADVERSE PARTIES AND STATE COURT
27. Pursuant to 28 U.S.C. § 1446(d), a copy of this Notice shall be
promptly served on Plaintiffs’ counsel of record and will be filed with the Clerk of
the Circuit Court of the First Circuit, State of Hawaiʻi.
V. CONCLUSION
28. By removing this action to this Court, Ohana does not waive
any defenses, objections, or motions available under state or federal law. Ohana
expressly reserves the right to move for dismissal of Plaintiffs’ claim pursuant to
Rule 12 of the Federal Rules of Civil Procedure (and/or any other rule).
WHEREFORE, Ohana prays that the above-entitled action be
removed from the Circuit Court of the First Circuit, State of Hawaiʻi, to the United
States District Court for the District of Hawaiʻi.
Case 1:14-cv-00217 Document 1 Filed 05/06/14 Page 13 of 16 PageID #: 13
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DATED: Honolulu, Hawaii, May 6, 2014.
/s/ Christine A. Terada LISA WOODS MUNGER RANDALL C. WHATTOFF CHRISTINE A. TERADA
Attorneys for Defendants OHANA MILITARY COMMUNITIES, LLC, FOREST CITY RESIDENTIAL MANAGEMENT, INC.
Case 1:14-cv-00217 Document 1 Filed 05/06/14 Page 14 of 16 PageID #: 14
4769301.1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CARA BARBER, MELISSA JONES, MELISSA STREETER AND KATIE ECKROTH, On Behalf of Themselves and All Others Similarly Situated,
Class Plaintiffs,
vs.
OHANA MILITARY COMMUNITIES, LLC, FOREST CITY RESIDENTIAL MANAGEMENT, INC.; and DOE DEFENDANTS 1-10,
Defendants.
CV 14-217
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
I hereby certify that, on the dates and by the methods of service noted
below, a true and correct copy of the foregoing was served on the following at their
last known addresses:
Served Electronically through CM/ECF P. Kyle Smith, Esq. [email protected] Terrance M. Revere, Esq. [email protected] Malia R. Nickison-Beazley, Esq. [email protected] Attorneys for Class Plaintiffs
Case 1:14-cv-00217 Document 1 Filed 05/06/14 Page 15 of 16 PageID #: 15
2
DATED: Honolulu, Hawaii, May 6, 2014.
/s/ Christine A. Terada LISA WOODS MUNGER RANDALL C. WHATTOFF CHRISTINE A. TERADA
Attorneys for Defendants OHANA MILITARY COMMUNITIES, LLC, FOREST CITY RESIDENTIAL MANAGEMENT, INC.
Case 1:14-cv-00217 Document 1 Filed 05/06/14 Page 16 of 16 PageID #: 16
LYNCH HOPPER SALZANO &SMITHP. KYLE SMITH 9533970 N. Kalaheo Ave., Suite A301Kailua, HI 96734T: (808} 791-955
REVERE &ASSOCIATESTERRANCE M. REVERE 5857-0MALIA R. NICKISON-BEAZLEY9289-0Pali Palms Plaza970 N. Kalaheo Ave., Suite A301Kailua, HI 96734T: (808}791-9550
Atto~~neys for Class Plaintiffs
n ~-2 ~~:~~ _~ ~~~ ~~ ~9
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAII
CAR.A BARBER, MELISSA JONES,MELISSA STREETER AND KATIEECKROTH, On Behalf of Themselves andAll Others Similarly Situated,
Class Plaintiffs,
ss.
OHANA MILITARY COMMUNITIES,LLC, FOREST CITY RESIDENTIALMANAGEMENT, INC.; and DOEDefendants 1-10,
Defendants.
CIVIL NO. ~ 4 - T ` 0 8 5 .0 - r~ ~ ~ " := ~:.~(Other Non-Vehicle Tort)
CLASS ACTION COMPLAINT FORDAMAGES; DEMAND FOR JURY TRIAL;SUMMONS
Case 1:14-cv-00217 Document 1-4 Filed 05/06/14 Page 1 of 26 PageID #: 26
EXHIBIT A
CLASS ACTION COMPLAINT FOR DAMAGES
Plaintiffs, by and through their undersigned attorneys, allege the following allegations and claims
against Forest City ("Forest City"):
I.
JURISDICTION AND VENUE
1) This Court has jurisdiction and venue over the above Defendants under Hawaii Revised
Statutes § 634-35, because the causes of action arise as the result of Defendants' business
transactions within this state, Defendants' commission of alleged tortious acts and injuries
within this state, and the Defendants' and Plaintiffs' use and possession of real property
within this state. Defendants are subject to the jurisdiction of this Court because they reside
and conduct business in this Circuit.
2} Fw-ther, this Court has jurisdiction and venue under the terms of Defendants' lease
agreements with Plaintiffs, which agree that Lease and contractual relationship between the
parties will be construed exclusively in accordance with, and shall be exclusively governed
by the substantive laws of the State of Hawaii, including but not limited to Hawaii State
Revised Statutes, chapter 521, and the common law intezpreting those statutes.
3) This Court has subject matter jurisdiction over this action under Hawaii Revised Statute §
603-21.5.
4) Venue is proper before this Court under Hawaii Revised Statute § 603-36.
2 Lynch Hopper Salzano &SmithRevere &Associates
Case 1:14-cv-00217 Document 1-4 Filed 05/06/14 Page 2 of 26 PageID #: 27
II.
PARTIES
~) Plaintiffs are military families who have leased residential housing from Defendant Forest
City housing at Marine Corp Base Hawaii (MCBH) in Kaneohe, Oahu, after 2006 from
Defendants.
6) Cara Barber is the spouse of a military service member and former tenant of Ohana
Military Communities, Kaneohe; Hawaii, from approximately August 2006 to November
2008, and August 2009 to Apri12011.
7) Melissa Jones is the spouse of a military service member and current tenant of Ohana
Military Communities, Kaneohe, Hawaii, from approximately July 2010 to present.
8) Melissa Streeter is the spouse of a military service member and fornzer tenant of Ohana
Military Communities, Kaneohe, Hawaii, from approximately Jtu-le ?009 to August 2011.
9) Katie Eckroth is the spouse of a military service member and current tenant of Ohana
Military Communities, Kaneohe, Hawaii, from approximately August 2009 to present.
10) Upon information and belief, Defendant Ghana Military Communities, LCC ("Ghana
MC") is and has been at all relevant times a Hawaii corporation, having its principal place
of business in the City and County of Honolulu, State of Hawaii.
11 } Upon information and belief, Defendant Forest City Residential Management, Inc.,
("Forest City RM") is and has been at all relevant times a foreign corporation doing
business in Hawaii and having its principal place of business in Cleveland, Ohio.
12) Plaintiff has reviewed records that were made available to them in order to ascertain the
true and full names and identities of all defendants in this action, but no fizrther knowledge
or information regarding the parties responsible is available at this time and Plaintiff is
3 Lynch Hopper Salzano &SmithRevere &Associates
Case 1:14-cv-00217 Document 1-4 Filed 05/06/14 Page 3 of 26 PageID #: 28
unable to ascertain the identity of the defendants in this action designated as DOE
DEFENDANTS 1-10 ('`Doe Defendants"). Doe Defendants are sued herein under fictitious
names for the reason that their true names and identities are unknown to Plaintiff except
that they may be connected in some manner with Defendants and may be agents, attorneys,
servants, employees, employers, representatives, co-venturers, co-conspirators, associates,
or independent contractors of Defendants and/or were in some manner responsible for the
injuries or damages to Plaintiff and their true names, identities, capacities, activities and
responsibilities are presently unknown to Plaintiff or their attorneys.
IV.
CLASS ALLEGATION
13) A class action is alleged pursuant to Hawaii Rule of Civil Procedure 23.
14) Plaintiffs seek to represent a class of persons ("Class") that includes:
All former and present persons who have leased or resided in residentialproperfy from Ohana MC at Marine Corp Base Hawaii in Kaneohe, Hawaii,from 2006 to the present.
15) The Class consists of thousands of current and former tenants who lived on MCBH from
?006 to the present. The Class is thezefore so numerous that joinder of all individual
plaintiffs would be impractical.
16) The Class involves questions of la~~ and fact common to al] individual members of the
Class, suc11 as ~vhetller Defendants knowingly exposed military families to toxic pesticides
and other toxins without their knowledge or consent.
17) The claims and damages sought by the Class are typical of the claims and relief that could
be sought by individual members of the class. Specifically, all members have suffered
similar injury and damages as a result of Defendants' failure to provide safe and healthy
4. Lynch Hopper Salzano &SmithRevere &Associates
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living conditions and the claims and defenses of the Class arise front the same conduct by
Defendants and a1•e based on the same legal theories.
18) Plaintiffs will adequately and fairly represent the interests of individual members of the
proposed Class in that they are similarly situated persons who lived on MCBH and who
~~-ere subjected to unsafe living conditions w°ithaut disclosure by- Defendants.
19) Finally, prosecution of separate actions by individual members of the Class would create a
risk of inconsistent and varying adjudications with respect to individual members of the
Class, which ~~~ould establish incompatible standards of conduct for the party opposing the
Class. Accordingly, a class action under Rule 23 of the Hawaii. Rules of Civil Procedure is
in the best interests of judicial economy.
II.
FACTUAL ALLEGATIONS
20) In 1996, under the provisions of the Military Housing Privatization Initiative, the United
States Congress authorized legislation to privatize military housing whereby private
companies were allowed to own and manage housing on military bases.
21) Thereafter, Ghana Military Communities, LLC ("Ghana MC") was created to renovate and
construct new housing at Marine Corp Base Hawaii ("MCBH")
22) Forest City Residential Management, Inc. ("Forest City RM"), acts as Ghana MC's agent
for the Lease of residential housing to military families on MCBH during all relevant times.
23) After Defendants took control of military housing at MCBH in approximately 2006,
Defendants have entered several thousand leases with military families for residential
housing at MCBH.
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24) Plaintiffs and the Class are present and former tenants who have leased residential housing
at MCBH after 2006 from Ohana MC.
25} Under the terms of their leases, Ohana MC and tenants agree:
a. Military families will pay monthly rent equal to their Basic Allowance for Military
Housing (``BAH"); I
b. Ohana MC will provide safe and habitable housing;2 and
c. To mediate any disputes or claim between them arising out of this Lease.3
26} After assuming confrol of MCBH residential housing, Ohana MC began to lease newly and
previously constructed residential housing to military families in 2006. Upon information
and belief, the older residential housing contained asbestos, lead-based paint, extensive
mold infestation, etc. During this time Ohana MC began demolishing portions of the older
residential housing to build new residential units for future lease.
27) Before taking control of MCBH housing, Defendants were warned by the contractor
previously hired by the Department of the Navy to carry out demolition and construction
of military housing that MCBH soils were contaminated with pesticides including
chlordane, heptachlor, and heptachlor epoxide, and that all contaminated topsoil should be
removed in addition to other measures.4
S`ee, e.g. Ohana MC Lease Agreement at 2, ~(3 ("Resident agrees to pay monthly Rent equal to the BasicAllowance for Military Housing at the ̀ with dependent' rate (the ̀ BAH') at the Resident's duty station of
the pay grade of the Resident service member."). Note that assignment to privatized housing is voluntary.
In other words, service members have the ability to use their BAH as they see fit; i.e. rent in the civilian
market or purchase real estate in the civilian market.
'' Id. at 5, X12 ("Owner is responsible ... for ensuring that the Premises are safe and habitable.")
(emphasis added).
3 Id. at 10, X34.
4 Chlordane was baru~ed by the EPA in 1988 and is classified as a Group B2 carcinogen by the EPA.
Similarly, heptachlor was banned by the EPA in 1974 and is listed as a Group B2 carcinogen.
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28) Thus, before taking over MCBH residential housing, Defendants were aware that
chlordane levels were many times higher than the EPA's Tier 1 environmental action
levels ("EAL") and that chemical contamination at MCBH housing presented increased
health risks for military families at MCBH.
29) Despite these warnings, Defendants did not disclose the presence of pesticide-
contaminated soils to military families before leasing housing to them at MCBH.
30) Instead, after learning of the presence of pesticide-contaminated soils, Ohana MC
investigated and confirmed the presence of pesticide contamination at MCBH.
31} Because of positive test results within several MCBH neighborhoods, Ohana MC
concluded that all neighborhoods should be assumed to contain pesticide impacted soils
beneath all existing foundations and surrounding perimeters.
32} Thus, in spite of specific knowledge of chemical contamination of MCBH residential
housing, Defendants took over existing leases and entered new leases with military
families without disclosure to these families that pesticide-contaminated soils had been
found and confirmed at MCBH.
33) Upon information and belief, in addition to heptachlor; chlordane, and heptachlor epoxide
levels in excess of EPA Tier 1 and Tier 2 levels EAL levels, Defendants are also aware of
chemical contamination for aldrin, dieldrin, and endrin at MCBH in excess of
recommended limits, but likewise failed to provide any notice of dangers associated with
these risks to military families.
34) After learning of the presence of pesticide-contaminated soils at MCBH, Defendants
created a Pesticide Soils Management Plan (the "Plan"} with input from the Hawaii
Department of Health (HDOH}.
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35) Within the Plan, Defendants decided to allow soil contamination levels above the Tier 1
EALs based on the underlying assumption that military families would not live at MCBH
longer than 6 years (i.e. two 3-year tours of duty at MCBH). Further, the Plan:
a. Confirmed the presence ofpesticide-contaminated soils at MCBH;
b. Assumed all neighborhoods contained pesticide-contaminated soils beneath all
existing home foundations and surrounding perimeters;
c. Recommended specific remediation practices to address pesticide contaminated soils
such as confirming that "no visible dust" should occur during demolition and
construction because of the danger of pesticide-contaminated soils;
d. Claimed that detailed maps would be kept and made available to the Department of
the Navy, MCBH property. management, and the HDOH detailing where pesticide-
contaminated soils had been found and addressed; and
e. Confirmed that written notification would be provided to residents anywhere they
may contact pesticide-contaminated soils.
36) Defendants, however, did not inform military families of the Plan nor did Defendants tell
military families that Defendants had agreed to accept pesticide-contaminated soils above
the Tier 1 EAL at MCBH. Defendants also failed to follow their own Plan. For example:
a. Rather than notifying residents that they may come in contact with pesticide-
contaminated soils, Defendants' Residential Community Handbook for Marine Corp
Neighborhoods ("Community Handbook") —which was provided to residents after
they entered leases with Defendants —only contained anon-specific reference that
chlordane and other pesticides "may be found" throughout the United States rather
than acknowledging pesticide-contaminated soils had been confirmed at MCBH:
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Chlordane was one of the most common pesticides applied to the soil a~~ound
homes and bz~sinesses throughout the United States for protectiofZ against
termites from 1948 to 1988. Other pesticides used in and around housing to
prevent insect infestation and disease outbreak have also been banned.
Althozrgh chlordane and othe~~ pesticides are no longer ztsed, they may be
found in soils under and around housing constYztcted in both civilian and
military communities. Families can safely woj~k and play in theit~ yards;
howevea~, we recommend residents use pYudent pYactices by thoroughly
washing theiY hands after diYect soil contact and washing all plants and
vegetables g~~own on-site before consuming.5
37) Despite the provisions of the Soil Management Plan, substantial fugitive dust occurred at
MCBH throughout the demolition of old housing and the construction of new housing.
38) Further, when military families complained about excessive dust, Defendants never
disclosed that pesticide-contaminated soils had been confirmed at MCBH. Instead,
Defendants told military families tkere was no danger.
39) Since at least 2006, Defendants have therefore failed to warn military fanulies of pesticide-
contaminated soils at MCBH and knowingly and intentionally exposed military families at
MCBH to higher rates of cancer and other adverse health outcomes without disclosing
these risks to military families or taking sufficient steps to protect military families from
such chemical contamination.
40) After military families discovered Defendants' failure to disclose the presence of pesticide-
contaminated soils, residents asked L}efendants to confirm what steps had been taken to
address pesticide-contaminated soils at their homes and also asked for Defendants to
mediate with them to address their concerns about pesticide-contaminated soils at MCBH.
41) Defendants, however, refused to mediate with residents despite the plain language of their
lease agreements with the Class to address these issues.
5 Forest City Residential Community Handbook Marine Corp Neighborhoods, at 14.
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FIRST CLAIM FOR RELIEF
{Breach of Contract)
42) Class Plaintiffs repeat and incorporate the above paragraphs herein.
43) Valid contracts ~~ere entered between Class Plaintiffs and Defendants for the lease of
residential housing on MCBH.
44} Under the terms of their lease contracts, Class Plaintiffs agreed to pay rent in exchange for
safe and healthy residential housing and that the parties' respective lease obligations and
responsibilities will be construed exclusively under the substantive laws of the State of
Hawaii, including but not limited to, Hawaii Revised Statutes Chapter 521 and the
common law interpreting those statutes.
45) Under the terms of their leases and Hawaii law, Defendants have breached their agreement
to provide safe and healthy residential housing.
46) Specifically, Defendants have failed to:
a. Disclose the presence ofpesticide-contaminated soils at MCBH;
b. Provide safe and healthy housing;
c. Fully implement their Pesticide Soii Management Plan; and
d. Mediate residents' concerns as required under the terms of Plaintiffs' leases.
47) Class Plaintiffs have sustained damages as a result of this breach, which includes the
overpayment of rent, future medical expenses, and medical monitoring of their health and
the health of their family members for Defendants' breach of contract.
48) Because of Defendants' breach of contract, it has been necessary for Class members to
incur expenses and other special damages in an amount to be proven at trial.
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49) Under the terms of (heir Tease, Class Plaintiffs are entitled as the prevailing party to
reasonable attorneys' fees and costs required to pursue this action.
50) As a proximate and legal result of Defendants' breach of contract, Class members have
been compelled to resort to litigation and therefore request an award of all consequential
damages, including, but not limited to, attorneys' fees and costs incurred in such litigation,
in amounts to be proven at time of trial.
SECOND CLAIM FOR RELIEF
(Tortious Breach of Contract)
51) Class Plaintiffs repeat and incorporate the above paragraphs herein.
52) Valid contracts exist between Class P1aizltiffs and Defendants for the lease of residential
housing on MCBH.
53) Under the terms of their lease contracts, Class Plaintiffs agreed to pay rent in exchange for
safe and healthy residential housing and that the parties' respective lease obligations and
responsibilities will be construed exclusively under the substantive laws of the State of
Hawaii, including but not limited to, Hawaii Revised Statutes Chapter 521 and the
common law interpreting those statutes.
54) Under the terms of their leases and Hawaii law; Defendants tortiously breached their
agreement to provide safe and healthy residential housing.
55) Specifically, Defendants intentionally and knowingly exposed Plaintiffs and their families
to increased health risks for cancer and other adverse health outcomes without their
knowledge and against their will despite specific and express warnings by the Department
of Health for the State of Hawaii and other persons.
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56) Plaintiffs have sustained damages as a result of Defendants' tortious breach, which
includes the overpayment of rent and future medical expenses and medical monitoring of
their health and the health of their family members.
57} Because of Defendants' tortious breach of contract, it has been necessary for Class
members to incur expenses and other special damages in an amount to be proven at trial.
58) Defendants' conduct was undertaken with reckless disregard for the foreseeable
consequences to Plaintiffs.
59) Defendants' conduct therefore justifies an award of exemplary or punitive damages in an
amount to be proven at the trial of this matter.
60) Under the terms of their lease, Class Plaintiffs are entitled as the prevailing party to
reasonable attorneys' fees and costs required to pursue this action.
61) As a proximate and legal result of Defendants' breach of contract, Class members have
been compelled to resort to litigation and therefore request an award of all consequential
damages, including; but not limited to, attonleys' fees and costs incurred in such litigation,
in amounts to be proven at time of trial.
THIRD CLAIM FAR RELIEF
(Breach of Implied Warranty of Habitability)
62) Class Plaintiffs repeat and incorporate the above paragraphs herein.
63) Defendants owe a duty to Class Plaintiffs to provide safe and healthy residential housing
for military families.
64) Under the terms of their lease contracts, Class Plaintiffs agreed to pay rent in exchange for
safe and healthy residential housing.
65) Defendants breached. their duty to provide safe and healthy residential housing.
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66) Specifically, Defendants exposed Class Plaintiffs and their families to increased health
risks for cancer and other adverse health outcomes without their knowledge and against
their will.
67} Because of Defendants' breach of the implied warranty of habitability; it has been
necessary for Class members to incur expenses and other special damages in an amount to
be proven at trial.
68) Plaintiffs have sustained damages as a result of Defendants' breach, which includes the
overpayment of rent and future medical expenses and medical monitoring of their health
and the health of their family members.
69) As a proximate and legal result of Defendants' breach of contract, Class members have
been compelled to resort to litigation and therefore request an award of all consequential
damages, including, but not limited to, attorneys' fees and costs incurred in such litigation;
in amounts to be proven at time of trial.
FOURTH CLAIM FOR RELIEF
(Violation of Hawaii Revised Statute Chapter 521 —Landlord Tenant Code)
70) Class Plaintiffs repeat and incorporate the above paragraphs herein.
71) Hawaii Revised Statute §521-10 imposes upon landlords an obligation of good faith in the
performance of their obligations under the lease.
72) Hawaii Revised Statute §521-42(a)(1) obligates Defendants to supply housing that
complies with all applicable building and housing laws materially affecting health and
safety.
73) Despite their obligation to provide healthy and -safe housing to military families,
Defendants intentionally and knowingly exposed Class Plaintiffs and their families to
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increased health risks for cancer and other adverse health outcomes without their
knowledge and against their will in addition to knowing violation of Defendants' own
Pesticide Soils Management Plan.
74) Defendants have therefore violated the Hawaii Landlord Tenant Code and Plaintiffs are
entitled to all rights and remedies afforded tenants under Chapter 521, which incudes their
reasonable attorneys fees and costs.
75) Because of Defendants' violation of Chapter 521 of the Hawaii Revised Statutes, it has
been necessary for Class members to incur expenses and other special damages in an
amount to be proven at trial.
76) Plaintiffs have sustained damages as a result of Defendants' breach, which includes the
overpayment of rent and future medical expenses and medical monitoring of their health
and the health of their family members.
77) As a proximate and legal result of Defendants' breach of contract; Class members have
been compelled to resort to litigation and therefore request an award of all consequential
damages, including, but not limited to, attorneys' fees and costs incurred in such litigation,
in amounts to be proven at time of trial.
FIFTH CLAIM FOR RELIEF
(Unfair &Deceptive Trade Practices)
78) Class Plaintiffs repeat and incorporate the above paragraphs herein.
79) "[U]nfair or deceptive acts or practices in the conduct of any trade or commerce are
unlawful."6
6 HaW. REV. STAT. §480-2.
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80) Class Plaintiffs are "consumers" under Hawaii Revised Statute 480-1 who have personally
invested their resources to lease military housing from Defendants. ~
81) Leasing residential housing at MCBH after the presence of pesticide-contaminated soils
are confirmed at MCBH without disclosing this fact to potential tenants constitutes an
unfair and deceptive act and practice in the conduct of trade and commerce that had the
tendency to mislead potential tenants.
82) To entice military families to enter leases ~~ith Defendants at MCBH, Defendants did not
disclose that pesticide-contaminated soils had been confirmed at MCBH and that
Defendants had decided to accept pesticide-contaminated soils at MCBH above the Tier 1
EAL.
83) Further, after entering leases with Class Plaintiffs, Defendants asserted it is safe for
families to work and play in their yards although they now admit that children and pets
should not be allowed to play in the yards near old house foundations and that families
should not grow fruits or vegetables in the yards near old house foundations.
84) These unfair and deceptive trade practices had a tendency to mislead Class Plaintiffs into
leasing housing at MCBH.
85) Because of Defendants' unfair and deceptive trade practices, it has been necessary for
Class Plaintiffs to incur expenses and other special damages in an amount to be proven at
trial.
86) Plaintiffs have sustained damages as a result of Defendants' breach; which includes the
overpayment of rent and future medical expenses and medical monitoring of their health
and the health of their family members.
' Haw. Rev. Stat. § 480-1.
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87) As a proximate and legal result of Defendants' unfair and deceptive trade practices, Class
members have been compelled to resort to litigation and therefore request an award of all
consequential damages, including; but not limited to, attorneys' fees and costs incurred in
such litigation, in amounts to be proven at time of trial.
SIXTH CLAIM FOR RELIEF
(Negligence)
88} Class Plaintiffs repeat and incorporate the above paragraphs herein.
89) Defendants have an obligation to provide safe and health housing for residents and a duty
to warn residents of risks.
90} Despite actual knowledge of the presence of pesticide-contaminated soils at MCBH and
related health risks, Defendants provided no warning to military families and instead
intentionally and knowingly exposed Plaintiffs and their families to increased health risks
for cancer and other adverse health outcomes without their knowledge and against their
will in addition to knowing violation of Defendants' own Pesticide Soils Management Plan.
91) Defendants have therefore breached their duties to military families at MCBH and
Plaintiffs are entitled to all rights and remedies, which incudes their reasonable attorneys
fees and costs.
92) Because of Defendants' negligence, it has been necessary for Class members to incur
expenses and other special damages in an amount to be proven at trial.
93) Plaintiffs have sustained damages as a result of Defendants' breach, which includes the
overpayment of rent and future medical expenses and medical monitoring of their health
and the health of their family members.
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94} Defendants' conduct was undertaken with reckless disregard for the foreseeable
consequences to Plaintiffs.
95) Defendants' conduct therefore justifies an award of exemplary or punitive damages in an
amount to be proven at the trial of this matter.
96) As a proximate and legal result of Defendants' negligence, Class members have been
compelled to resort to litigation and therefore request an award of all consequential
damages, including, but not limited to, attorneys' fees and costs incurred in such litigation,
in amounts to be proven at time of trial.
SEVENTH CLAIM FOR RELIEF
(Negligent &Intentional Infliction of Emotional Distress)
97) Class Plaintiffs repeat and incorporate the above paragraphs herein.
98) After Class Plaintiffs discovered Defendants failure to disclose the presence of pesticide-
contaminated soils in 2013, Class Plaintiffs asked to mediate with MCBH in order to
confirm whether pesticide contaminated soils had been remediated.
99) Rather than provide confirmation where pesticide contaminated soils had been found and
specifically addressed, however, Defendants have repeatedly failed to provide evidence of
what steps were taken.
100) Although Defendants historically told residents that it was safe to work and play in their
yards, Defendants now recommend that pets and children not be allowed to play in the
yard near the foundation of the original homes...that are unmarked.
101) And when residents have asked for maps and other information that is supposed to be
available to confirm their homes are safe, Defendants have been neither willing nor able to
make such inforrnatian available.
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102) Class Plaintiffs are also now aware that despite actual knowledge of the presence of
pesticide-contaminated soils at MCBH; Defendants provided no warning to military
families and intentionally and knowinbly exposed Class Plaintiffs and their families to
increased health risks for cancer and other adverse health outcomes without their
knowledge and against their will.
103) Defendants' intentional negligent and/or reckless conduct, acts, and omissions have caused
emotional distress by causing fear in the community of exposure to harmful pesticides.
104) Class Plaintiffs have further sustained damages as a result of Defendants' conduct and
missions, which includes the overpayment of rent and future medical expenses and medical
monitoring of their health and the health of their family members.
105) Class Plaintiffs are entitled to all rights and remedies, which incudes their reasonable
attorneys fees and costs.
106) Because of Defendants' conduct and omissions, it has been necessary for Class members
to incur expenses and other special damages in an amount to be proven at trial.
107) As a proximate and legal result of Defendants' acts and omissions; Class members have
been compelled to resort to litigation and therefore request an award of all consequential
damages, including, but not limited to, attorneys' fees and costs incurred in such litigation,
in amounts to be proven at time of trial.
EIGHTH CLAIM FOR RELIEF
(Fraud/Intentional Misrepresentation)
108} Class Plaintiffs repeat and incorporate the above paragraphs herein.
109) Defendants have expressly represented that the housing they provide is safe and habitable
for military families.
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110) Despite these representations; Defendants intentionally and knowingly omitted telling
military families that living at MCBH would result in exposure to elevated risks for cancer
and other adverse health outcomes.
111) Despite these representations; Defendants intentionally and knowingly omitted telling
military families that Defendants had decided it was acceptable to expose military families
to pesticide contamination in excess of Tier 1 EALs.
112) Despite these representations, Defendants now acknowledge that children and pets should
not be allowed to play in their yards and that families should not grow fruits oz vegetables
in their yards if near the foundation of the pre-existing housing...that has never been
disclosed.
113) Defendants have therefore committed fraud against military families by claiming
Defendants would provide safe housing while omitting that pesticide-contaminated soils
had been confirmed at MCBH and that these soils posed increased health risks for military
families.
114) Class Plaintiffs have sustained damages as a result of Defendants' fraudulent acts and
omissions, which includes the overpayment of rent and future medical expenses and
medical monitoring of their health and the health of their family members.
115) Defendants' fraudulent conduct was undertaken with reckless disregard for the foreseeable
consequences to Class Plaintiffs.
116) Defendants' fraudulent acts and omissions therefore justify an award of exemplary or
punitive damages in an amount to be proven at the trial of this matter.
117) Because of Defendants' fraudulent acts and omissions, it has been necessary for Class
members to incur expenses and other special damages in an amount to be proven at trial.
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118) Class Plaintiffs are entitled as the prevailing party to reasonable attorneys' fees and costs
required to pursue this action.
NINTH CLAIIVI FOR RELIEF
(Negligent Misrepresentation)
119) Class Plaintiffs repeat and incorporate the above paragraphs herein.
120) Defendants have expressly represented that the housing they provide is safe and habitable
for military families.
121) Despite these representations, Defendants negligently failed to inform military families
that living at MCBH w~~ould result in exposure to elevated risks for cancer and other
adverse health outcomes.
122) Despite these representations, Defendants intentionally and knowingly omitted telling
military families that Defendants had decided it was acceptable to expose military families
to pesticide contamination in excess of Tier 1 EALs.
123) Despite these representations, Defendants now acknowledge that children and pets should
not be allowed to play in their yards if near the foundation of the pre-existing
housing...that has never been disclosed.
124} Defendants' claim they would provide safe housing while omitting that pesticide-
contaminated soils had been confirmed at MCBH and that these soils posed increased
health risks for military families constitutes a negligent misrepresentation to Class
Plaintiffs.
125) Class Plaintiffs have sustained damages as a result of Defendants' negligent acts and
omissions, which includes the overpayment of rent and future medical expenses and
medical monitoring of their health and the health of their family members.
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126) Defendants' conduct was undertaken with negligent or reckless disregard for the
foreseeable consequences to Class Plaintiffs.
127) Defendants' grossly negligent and/or reckless acts and omissions justify an award of
exemplary or punitive damages in an amount to be proven at the trial of this matter.
128) Because of Defendants' acts and omissions, it has been necessary for Class members to
incur expenses and other special damages in an amount to be proven at trial.
129) Class Plaintiffs are entitled as the prevailing party to reasonable attorneys' fees and costs
required to pursue this action.
TENTH CLAIM F4R RELIEF
(Prima Facie Tort)
130) Class Plaintiffs repeat and incorporate the above paragraphs herein.
131) Defendants have expressly represented that the housing they provide is safe and habitable
for military families.
132) Despite these representations, Defendants intentionally failed to inform military families
that living at MCBH would result in exposure to elevated risks for cancer and other
adverse health outcomes; and decided without input from military families that it was
acceptable to expose military families to pesticide contamination in excess of Tier 1 EALs.
133) Defendants knew that failing to inform military families would cause expose Class
Plaintiffs to increased health risks for themselves and their families.
134) Defendants' claim they would provide safe housing while omitting that pesticide-
contaminated soils had been confirmed at MCBH and that these soils posed increased
health risks for military families constitutes a prima facie tart.
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135) Class Plaintiffs have sustained damages as a result of Defendants' tortious conduct and
omissions, which includes the overpayment of rent and future medical expenses and
medical monitoring of their health and the health of their family members.
136) Defendants' conduct was undertaken with intentional, gross negligence, and/or reckless
disregard for the foreseeable consequences to Class Plaintiffs.
137) Defendants' intentional, grossly negligent, and/or reckless acts and omissions therefore
justify an award of exemplary or punitive damages in an amount to be proven at the trial of
this matter.
13$) Because of Defendants' acts and omissions, it has been necessary for Class members to
incur expenses and other special damages in an amount to be proven at trial.
139) Class Plaintiffs are entitled as the prevailing party to reasonable attorneys' fees and costs
required to pursue this action.
WHEREFORE, Class Plaintiffs pray for judgment against Defendants and in favor of the
Plaintiffs as follows:
1. Preliminary and permanent injunctive relief to require Defendants to:
a. Investigate the actual risks to military families at MCBH posed by the known
chemical contamination of residential housing;
b. Give warning to all past and present tenants at MCBH of the health risks they
have been exposed to by Defendants; and
c. Enjoin Defendants' lease of any new residential property until Defendants
demonstrate that chemical contamination levels are below accepted action levels
for all homes;
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2. General, special, treble, and consequential damages in an amount to be proven at trial;
3. Reasonable attorneys' fees and costs;
4. Disgorgement of profits;
~. Any prejudgment interest provided by statute;
6. Punitive damages for Defendants' wanton, reckless, and grossly negligent conduct;
7. For such other and further relief as the Court may deem just and proper.
DATED: Kailua, Hawaii; this 3rd day of Apri12014
P. KYL SMITHTERR~NCE M. REVEREMALIA R. NICKISON-BEAZLEY
Atto~•neys for Class Plaintiffs
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