The Highlands at Greenspring Quarry Village Assoc., Inc. v. Beazer Homes Corp.

MOTION to Dismiss for Failure to State a Claim

D. Md.April 3, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND BALTIMORE DIVISION THE HIGHLANDS AT GREENSPRING QUARRY VILLAGE ASSOC., INC. A Maryland Non Stock Corporation C/O Residential Realty Group 3600 Crondall Lane, Suite 103 Owings Mills, Maryland 21117 Plaintiff, v. BEAZER HOMES CORP. Now Known as Beazer Homes LLC 1000 Abernathy Road Atlanta, GA 30328 Defendant Case No. 1:17-cv-00646-ELH Motion to Dismiss Defendant Beazer Homes Corp.’s Motion to Dismiss Counts II and III of Plaintiff’s Complaint Pursuant to Fed. R. Civ. Proc. 12(b)(6) and Local Rule 105, defendant Beazer Homes Corp. (“Beazer”) moves to dismiss Counts II and III of Plaintiff The Highlands At Greenspring Quarry Village Association, Inc.’s (“GSQ Highlands”) Complaint with prejudice for failure to state a claim for which relief may be granted. In addition and in the alternative, Beazer requests that the Court dismiss Count II pursuant to Fed. R. Civ. Proc. 9(b) for failure to plead with the required particularity. For the reasons more fully described in the Memorandum supporting this Motion, Defendant’s Motion to Dismiss Plaintiff's Complaint should be granted. Case 1:17-cv-00646-ELH Document 16 Filed 04/03/17 Page 1 of 15 2 REQUEST FOR A HEARING Defendant hereby requests a hearing on this Motion. Dated: April 3, 2016 Respectfully Submitted, BEAZER HOMES CORP. By: /s/ Devin J. Stone Barnes & Thornburg LLP Devin J. Stone, Esq. (Federal MD Bar 19129) 1717 Pennsylvania Ave. NW, Suite 500 Washington, DC 20006 Telephone: 202-289-1313 Fax: 202-289-1330 Email: devin.stone@btlaw.com Andrew J. Detherage (pro hac vice) 11 South Meridian Street Indianapolis, IN 46204 Telephone: 317-236-1313 Fax: 317-231-7433 Email: andy.detherage@btlaw.com Attorneys for Defendant Beazer Homes Corp. Case 1:17-cv-00646-ELH Document 16 Filed 04/03/17 Page 2 of 15 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND BALTIMORE DIVISION THE HIGHLANDS AT GREENSPRING QUARRY VILLAGE ASSOC., INC. A Maryland Non Stock Corporation C/O Residential Realty Group 3600 Crondall Lane, Suite 103 Owings Mills, Maryland 21117 Plaintiff, v. BEAZER HOMES CORP. Now Known as Beazer Homes LLC 1000 Abernathy Road Atlanta, GA 30328 Defendant Case No. 1:17-cv-00646-ELH Memorandum of Law in Support of Motion to Dismiss I. INTRODUCTION Plaintiff, The Highlands At Greenspring Quarry Village Association, Inc.’s (“Plaintiff” or “GSQ Highlands”) claims for Fraudulent and Negligent Misrepresentation in Counts II and III of the Complaint should be dismissed with prejudice. Even assuming the allegations of the Complaint to be true for purposes of this motion, GSQ Highlands cannot recover on these claims as a matter of law. GSQ Highlands alleges Beazer breached the parties’ contract—the Declaration for the master homeowners association—because it claims Beazer was contractually obligated to pay certain maintenance expenses for the common areas of the Greenspring Quarry development. As a matter of law, GSQ Highlands cannot assert a tort claim to recover for this alleged breach of contract. Similarly, Maryland’s economic loss doctrine bars a tort claim for economic damages. In addition, even if GSQ Highlands could assert a tort claim and could do so Case 1:17-cv-00646-ELH Document 16 Filed 04/03/17 Page 3 of 15 4 to recover economic losses, it cannot establish the element of “reasonable reliance” as a matter of law because it alleges the Declaration contained terms regarding who was responsible for common area maintenance expenses (and therefore GSQ Highlands could not reasonably rely on contrary assertions). Finally, even if GSQ Highlands could assert a legally cognizable claim for fraudulent misrepresentation, the complaint fails to state that claim with specificity as required by Fed R. Civ. Pr. 9(b). For these reasons, the Court should dismiss GSQ Highlands’ claims for Fraudulent and Negligent Misrepresentation. II. FACTUAL ALLEGATIONS In its complaint, GSQ Highlands asserts three claims—Count I for Breach of Contract, Count II for Fraudulent Misrepresentation, and Count III for Negligent Misrepresentation. GSQ Highlands alleges Defendant Beazer is the developer of the condominium and apartment complex known as Quarry Lake at Greenspring (the “Development”) (Compl. ¶ 3) and that GSQ Highlands seeks to recover costs for common area maintenance expenses GSQ Highlands claims Beazer should have paid under the Declaration. (Compl. ¶ 6). GSQ Highlands alleges (a) it was formed by the “Declaration of Covenants, Conditions, and Restrictions for Green Spring Quarry Association” in 2006 (the “Declaration”), (b) the Declaration defines the rights and obligations of Beazer and GSQ Highlands, and (c) the Declaration provides that Beazer is responsible for certain common area maintenance expenses that have been paid by GSQ Highlands. (Compl. ¶¶ 15, 16, 22, and 29). Specifically, GSQ Highlands asserts that “the Declaration clearly defines the responsibility for all expenses associated with the maintenance of the Common [A]reas.” (Compl. ¶ 22) 1 . GSQ Highlands further alleges that Beazer breached the Declaration by not 1 GSQ also claims it is entitled to recover its attorneys’ fees, under the Declaration. Beazer disputes this claim, but it is immaterial for purposes of this Motion. Case 1:17-cv-00646-ELH Document 16 Filed 04/03/17 Page 4 of 15 5 paying for certain common area maintenance expenses, and GSQ Highlands seeks to recover the costs paid by GSQ Highlands for those common area maintenance expenses. (Compl. ¶ 32 and prayer for relief). In Counts II and III, GSQ Highlands asserts claims for “Fraudulent Misrepresentation” and “Negligent Misrepresentation,” seeking to recover the same common area maintenance expenses it claims Beazer owes under the Declaration in its Breach of Contract claim in Count I. (Compl. ¶¶ 38, 44, prayer for relief in Counts II and III). Although GSQ Highlands’ allegations are vague and non-specific, it alleges someone made some false or negligent representations of some type that the common area maintenance expenses were due and payable by GSQ Highlands under the Declaration. (Compl. ¶¶ 35, 40). The Complaint does not identify what specific statement was allegedly made, who made it, where or when it was made, or to whom it was made. III. STANDARD FOR DISMISSAL UNDER RULE 12(B)(6) A motion to dismiss for failure to state a claim under Fed. Civ.P. Rule 12(b)(6) will be granted when “it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief.” Kwang Dong Pharmaceutical Co. v. Han, 205 F. Supp.2d 489, 495 (D. Md. 2002). All well pleaded facts of the Complaints must be considered as true for purposes of the motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 663, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Likewise, factual allegations devoid of any reference to actual events are not required to be taken as true. United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979) (affirming in part dismissal of claims). Case 1:17-cv-00646-ELH Document 16 Filed 04/03/17 Page 5 of 15 6 Courts have dismissed misrepresentation claims in similar situations. See Kwang Dong Pharmaceutical Co., 205 F. Supp.2d at 495 (dismissing fraudulent misrepresentation claims sounding in contract with prejudice); Sass v. Andrew, 152 Md. App. 406, 440–41 (2003) (reversing fraudulent concealment verdict due to parties’ contract); Sun-Lite Glazing Contractors, Inc. v. J.E. Berkowitz, L.P., 37 Fed.Appx. 677, 680 (4th Cir. 2002) (affirming dismissal of negligent misrepresentation claims premised on a breach of contract); Abt Associates, Inc. v. Jhpiego Corp., 104 F. Supp.2d 523, 537 (D. Md. 2000) (dismissing fraud claim where parties failed to reach a final agreement). IV. PLAINTIFF’S FRAUDULENT AND NEGLIGENT MISREPRESENTATION CLAIMS FAIL AS A MATTER OF LAW AND SHOULD BE DISMISSED WITH PREJUDICE. A. GSQ Highlands’ Fraudulent and Negligent Misrepresentation Claims Fail as a Matter of Law Because There Is No Tort Claim for a Breach of Contract, Under Maryland Law. In its “Summary of the Case” in the Complaint, GSQ Highlands alleges: “This is an action to recover expenses paid for the maintenance and preservation of certain common areas within the Greenspring Quarry Development by the Association which according to the terms of the Declaration of Covenants, Conditions and Restrictions were lawfully the responsibility of the Defendant Beazer. Such expenses total in excess of Eight Hundred Eighty Six Thousand Eight Hundred Ninety Three Dollars ($886,893.00).” (Compl. ¶ 6). GSQ Highlands goes on to assert a breach of contract claim alleging that Beazer breached the Declaration by not paying the common area maintenance costs, and therefore, GSQ Highlands claims, Beazer should pay damages of $886,893.00. (Compl. ¶¶ 29-33). In its Fraudulent and Negligent Misrepresentation claims, GSQ Highlands seeks to recover the exact same damages—common area maintenance expenses of $886,893 it claims Beazer was obligated to pay under the Declaration. (Compl. ¶¶ 38, 44, prayer for relief in Counts II and III). The cause of action arising from an alleged failure Case 1:17-cv-00646-ELH Document 16 Filed 04/03/17 Page 6 of 15 7 to perform under the Declaration is a breach of contract claim—no tort claim is available for a breach of contract under Maryland law. Under Maryland law, “[w]here the essence of a relationship between the parties is contractual in nature and the basis for the claim of defendant’s dereliction is its failure to perform the contract, the cause of action arising from such dereliction is not available in a tort action but only in an action for breach of contract.” Abt Associates, Inc. v. Jhpiego Corp., 104 F. Supp.2d 523, 537 (D. Md. 2000). Likewise, “[t]he mere negligent breach of a contract, absent a duty or obligation imposed by law independent of that arising out of the contract itself, is not enough to sustain an action sounding in tort.” Heckrotte v. Riddle, 224 Md. 591, 595 (1961). See also View Point Med. Sys., LLC v. Athena Health, Inc., 9 F. Supp. 3d 588, 616 (D. Md. 2014); Jacques v. First Nat. Bank of Maryland, 307 Md. 527, 534 (1986); Mesmer v. Md. Auto. Ins. Fund, 353 Md. 241, 253 (1999) (“A contractual obligation, by itself, does not create a tort duty. Instead, the duty giving rise to a tort action must have some independent basis”); Wilmington Trust Co. v. Clark, 289 Md. 313, 328-29 (1981) (“Mere failure to perform a contractual duty, without more, is not an actionable tort.”). “[T]his circuit has made clear that we will not countenance a negligent misrepresentation claim premised only upon a breach of a contractual obligation when the contract does not provide for the bringing of such a claim and the parties are ‘equally sophisticated.’” Sun-Lite Glazing Contractors, Inc. v. J.E. Berkowitz, L.P., 37 Fed.Appx. 677, 680 (4th Cir. 2002) citing Martin Marietta Corp. v. Int’l Telecomm. Satellite Org., 991 F.2d 94, 98 (4th Cir.1992) (“parties who have the opportunity to allocate risks to third party insurance or among one another should be held to only those duties specified by the agreed upon contractual terms and not to general tort duties imposed by state law.”) Case 1:17-cv-00646-ELH Document 16 Filed 04/03/17 Page 7 of 15 8 Plaintiff has failed to allege that a duty arises independent of the contractual relationship between GSQ Highlands and Beazer. On the contrary, as alleged by GSQ Highlands, the parties’ relationship arises purely out of contract. GSQ Highlands’ claims are nothing more than an alleged failure of performance of contractual obligations. GSQ Highlands does not claim that Beazer (or anyone else) ever claimed the common area maintenance invoices were anything other than accurate reflections of incurred maintenance costs. GSQ Highlands’ only complaint is that it paid the costs rather than Beazer under the Declaration. The tort claims made by GSQ Highlands impermissibly attempt to turn a breach of contract into a tort. See, e.g., Chubb & Son v. C&C Complete Services, LLC, 919 F. Supp. 2d 666, 675 (D. Md. 2013) (granting motion to dismiss negligent misrepresentation and fraudulent concealment claims after finding the parties were in contractual privity); Mayor & City Council of Baltimore v. Unisys Corp., No. 12--614, 2012 WL 3561850, *3-4 (D. Md. Aug. 16, 2012) (dismissing negligent misrepresentation claim where plaintiff failed to allege that its relationship with defendant consisted of anything other than an arm’s length contract for the design and sale of goods between equally sophisticated parties); Atlantic Forest Products, LLC v. Wm. M. Young Co, LLC, No. RDB--11--0241, 2011 WL 6351851, *4 (D. Md. Dec. 19, 2011). GSQ Highlands’ claims for Fraudulent Misrepresentation (Count II) and Negligent Misrepresentation (Count III) – which attempt to turn a contract dispute into tort claims– fail as a matter of law, and should be dismissed. B. GSQ Highlands’ Fraudulent and Negligent Misrepresentation Claims are Foreclosed by the Economic Loss Doctrine. GSQ Highlands’ fraudulent and negligent misrepresentation also are foreclosed by the economic loss doctrine because the damages claimed by GSQ Highlands are purely economic losses under the Declaration. Maryland courts consistently have held that there is no recovery in tort for purely economic losses, absent a risk of death, personal injury, or destruction of tangible Case 1:17-cv-00646-ELH Document 16 Filed 04/03/17 Page 8 of 15 9 property. A.J. Decoster Co. v. Westinghouse Elec. Corp., 333 Md. 245, 251 (1994); Copiers Typewriters Calculators v. Toshiba Corp., 576 F. Supp. 312, 326 (D. Md. 1983) (applying Maryland law and concluding that negligence cause of action was foreclosed by economic loss doctrine where the purchaser of photocopying machines sought recovery for the failure of the defective copiers to perform adequately); Sun-Lite Glazing Contractors, Inc. v. J.E. Berkowitz, L.P., 37 Fed.Appx. 677, 679 (4th Cir. 2002). The Maryland Court of Special Appeals has explained: It is generally said that a contractor’s liability for economic loss is fixed by the terms of his contract. Tort liability is in general limited to situations where the conduct of the builder caused an accident out of which physical harm occurs to some person or tangible thing other than the building itself that is under construction. Council of Co-Owners of Atlantis Condominium, Inc. v. Whiting-Turner Contracting Co., 308 Md. 18, 33 (1986) (internal citation omitted) (quoting with approval Prosser and Keeton on The Law of Torts, (5th ed. 1984), § 92 n. 15, citations omitted)); Sun-Lite Glazing, 37 Fed.Appx. at 680 (dismissing a negligent misrepresentation claim under the economic loss doctrine because were the court “to recognize the viability of a negligent misrepresentation claim on the facts alleged by Sun–Lite, we would not only ignore settled precedent interpreting Maryland law, we would allow a garden variety breach of contract claim to be converted into a negligence claim, thereby nullifying the parties’ agreed upon allocations of risk.”) GSQ Highlands does not allege that Beazer’s alleged breach of its contract regarding payment of common area maintenance costs (or any other conduct by Beazer) caused a risk of death, personal injury, or destruction of property. GSQ Highlands seeks only economic damages against Beazer – specifically, the liquidated costs of certain common area maintenance expenses. Case 1:17-cv-00646-ELH Document 16 Filed 04/03/17 Page 9 of 15 10 As a matter of Maryland law, this type of damages is not recoverable in a tort claim. For this reason as well, GSQ Highlands’ fraudulent and negligent misrepresentation claims in Counts II and III should be dismissed with prejudice. C. GSQ Highlands’ Fraudulent and Negligent Misrepresentation Claims Fail For Lack of Reasonable Reliance Because GSQ Highlands Was A Party to The Declaration. An essential element of both fraudulent and negligent misrepresentation claims is proof that the plaintiff reasonably relied on a misrepresentation. Nails v. S & R, Inc., 334 Md. 398, 416 (1994) (fraudulent misrepresentation requires “the plaintiff relied on the misrepresentation and had the right to rely on it.”); Village of Cross Keys, Inc. v. U.S. Gypsum Co., 315 Md. 741, 755 (1989) (negligent misrepresentation requires “the plaintiff, justifiably, takes action in reliance on the statement”). A misrepresentation generally is immaterial if the party to whom it is made reasonably could have ascertained the true facts. See Carozza v. Peacock Land Corp., 231 Md. 112, 121 (1963); Sass v. Andrew, 152 Md.App. 406, 440–41 (2003). A party to a transaction is not under a general duty to disclose facts to another party. See Sass, 152 Md.App. at 432. Where the parties’ relationship is defined by contract, it is unreasonable as a matter of law to rely on representations contrary to that contract. Sass, 152 Md. App. at 440–41 (reversing jury verdict of fraud where the parties’ contract would have revealed the claimed fraudulently concealed information “if [plaintiff] had looked at the Contract”). In Sass, the court concluded that the plaintiff could not have reasonably relied on information contrary to the express terms of the contract. Id. at 441. Here, GSQ Highlands alleges that it was formed by the Declaration (and clearly had knowledge of the Declaration) (Compl. ¶ 15-16), and that “the Declaration clearly defines the responsibility for all expenses associated with the maintenance of the common areas.” (Compl. ¶ Case 1:17-cv-00646-ELH Document 16 Filed 04/03/17 Page 10 of 15 11 22)(emphasis added). Based on its own allegations, GSQ Highlands could not have reasonably relied on an alleged misrepresentation, if as it alleges, the Declaration “clearly defines” who is responsible for the common area maintenance expenses. Just as the plaintiff in Sass could not reasonably rely on representations about facts that could be found in the contract she signed, GSQ Highlands cannot, as a matter of law, rely on claimed representations that GSQ Highlands alleges were contained in, and “clearly define[d]” in, the Declaration. For this reason as well, Counts II and III should be dismissed with prejudice. V. GSQ HIGHLANDS’ FRAUDULENT MISREPRESENTATION CLAIM ALSO FAILS FOR LACK OF PARTICULARLITY. A. Specificity Requirements of Rule 9(b). In relevant part, Fed. Civ. P. Rule 9(b) requires that, “[i]n all averment of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Fraud includes a wide variety of theories including fraudulent misrepresentation, fraudulent concealment, and fraudulent inducement. Sass v. Andrew, 152 Md. App. 406, 432 (2003). Rule 9(b) requires that a party alleging fraud plead in “particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. Rule 9(b); Hill v. Brush Engineered Materials, Inc., 383 F. Supp. 2d 814, 819 (D. Md. 2005) (noting that “[t]o preserve her [fraud] claims... Plaintiff’s allegations must satisfy both the general pleading requirements of Rule 8 as well as the heightened requirements of Rule 9” and proceeding to dismiss plaintiff’s fraud claim under the heightened pleading standard). In Hill the Court dismissed the plaintiff’s claim of fraud in part because of her failure to specify who made the statements, when the statements were made, and how she came to rely on them. Hill, 383 F. Supp. 2d at 823. In addition to pleading the substantive requirements for a claim of fraudulent misrepresentation, the heightened pleading standard requires the complaint to refer to “the time, Case 1:17-cv-00646-ELH Document 16 Filed 04/03/17 Page 11 of 15 12 place and contents of the false representations, as well as the identity of the person making the misrepresentation and what was obtained thereby.” See Windsor Associates, Inc. v. Greenfeld, 564 F. Supp. 273, 280 (D. Md. 1983) (quoting C. Wright and A. Miller, Federal Practice and Procedure, §1297, pp. 400, 403 (1969)). 2 To satisfy the rule, a plaintiff must “identify with some precision the date, place, and time of active misrepresentations or the circumstances of active concealments, specifying which Defendant ... is supposedly responsible for those statements or omissions.” Johnson v. Wheeler, 492 F. Supp. 2d 492, 509 (D. Md.2007). Courts routinely dismiss claims that do not meet this heavy burden. See e.g. Ayres v. Ocwen Loan Servicing, LLC, 129 F. Supp. 3d 249, 274 (D.Md. 2015); View Point Medical Systems, LLC v. Athena Health, Inc., 9 F. Supp. 3d 588, 614 (D.Md. 2014) (Hollander, J.). B. GSQ Highlands Failed to Plead Fraudulent Misrepresentation with the Required Particularity Absent specific, particularized allegations as to the time, place, and contents of the allegedly fraudulent statements as well as the identity of the speaker, the person to whom the statement is made, and the gain to be had, Plaintiff’s second cause of action for fraud must be dismissed under Rule 12(b)(6). See Muigai v. IB Property Holdings, LLC, 2010 WL 5173313 *3 (D. Md. 2010) (dismissing plaintiffs’ fraudulent misrepresentation claim because plaintiff did not “state any specific action taken or exact time when IB acted or conspired to act fraudulently.); 2 In order to prevail on a claim for fraudulent misrepresentation, a plaintiff must prove by clear and convincing evidence that “(1) the Defendant made a false representation; (2) that its falsity was either known to the defendant, or the misrepresentation was made with reckless indifference as to its truth; (3) that it was made for the purpose of defrauding the plaintiff; (4) that the plaintiff relied on the misrepresentation and had the right to rely on it; and (5) that the plaintiff suffered compensable injury resulting from the misrepresentation.” See Philip Moeeis, Inc v. Angelletti, 752 A.2d 200, 233 (Md. 2000); Kline v. Home Depot Inc., Civil Action No. RDB-08-990, 2009 WL 2246656, *8 (D. Md. July 27, 2009) (citation omitted). Case 1:17-cv-00646-ELH Document 16 Filed 04/03/17 Page 12 of 15 13 View Point Medical Systems, LLC v. Athena Health, Inc., 9 F. Supp. 3d 588, 614 (D.Md. 2014) (Hollander, J.). Here, GSQ Highlands’ scant allegations do not pass muster. GSQ Highlands alleges: 35. In instructing its controlled Board of Directors to cause Tidewater to generate submit [sic] invoices for the payment of Common Area expenses Beazer falsely represented to the Association and each owner of any unit that such payments were due and payable by the Association and were in fact the lawful responsibility of the Association. 36. That representation was false and known to Beazer to be false at the time it was made at the submission of each invoice for Common Area expenses. 37. The Association and the unit owners it represented relied on said representation and had a right to rely on the representation. GSQ Highlands fails to allege the “time, place, and content” of the alleged misrepresentations, and GSQ Highlands fails to identify who at Beazer made the alleged misrepresentations, and to whom at GSQ Highlands. For this reason, Count II of the Complaint should be dismissed pursuant to Rule 9(b). Moreover, GSQ Highlands affirmatively demonstrates that Beazer could not have made any misrepresentations to GSQ Highlands that GSQ Highlands relied upon. Rather, GSQ Highlands alleges that whatever statement was made by someone at Beazer was made to Tidewater, not to GSQ Highlands. GSQ Highlands asserts that the Board of Directors of GSQ Highlands caused a third-party property manager to generate invoices for Common Area maintenance. Presumably, the third-party manager then provided the invoices back to GSQ Highlands, which approved them. These allegations further demonstrate that the complaint lacks Case 1:17-cv-00646-ELH Document 16 Filed 04/03/17 Page 13 of 15 14 the required specificity and that the fraudulent misrepresentation claims do not state a claim under Rule 9(b) or as a matter of law. VI. CONCLUSION For the foregoing reasons, Beazer respectfully requests that GSQ Highlands’ claims for fraudulent and negligent misrepresentation in Counts II and II of the complaint be dismissed with prejudice. In the alternative, Beazer requests that GSQ Highlands’ claims for fraudulent misrepresentation in Count II of the complaint be dismissed pursuant to Rule 9(b). Dated: April 3, 2016 Respectfully Submitted, BEAZER HOMES CORP. By: /s/ Devin J. Stone Barnes & Thornburg LLP Devin J. Stone, Esq. (Federal MD Bar 19129) 1717 Pennsylvania Ave. NW, Suite 500 Washington, DC 20006 Telephone: 202-289-1313 Fax: 202-289-1330 Email: devin.stone@btlaw.com Andrew J. Detherage (pro hac vice) 11 South Meridian Street Indianapolis, IN 46204 Telephone: 317-236-1313 Fax: 317-231-7433 Email: andy.detherage@btlaw.com Attorneys for Defendant Beazer Homes Corp. Case 1:17-cv-00646-ELH Document 16 Filed 04/03/17 Page 14 of 15 15 CERTIFICATE OF SERVICE I hereby certify that on this 3 rd day of April, 2017, I caused the foregoing to be filed electronically with the Clerk of Court using the CM/ECF System, which will send notice of such filing to the Plaintiff. /s/ Devin J. Stone Case 1:17-cv-00646-ELH Document 16 Filed 04/03/17 Page 15 of 15