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Case No. 13-CV-5278


Motion to Dismiss and Memorandum in Support
Defendant, Quality Properties, Inc., respectfully moves, through counsel,
for dismissal of this housing discrimination case pursuant to rule 12(b)(6) of
the Federal Rules of Civil Procedure. As set forth in the accompanying
Memorandum in Support, Plaintiffs’ complaint should be dismissed for failure
to state a clam upon which relief can be granted.
Plaintiffs, who are tenants of Defendant’s apartment complex, bring this
action pursuant to 42 U.S.C. §§ 3604(b) and 3617, part of the federal Fair
Housing Act. Plaintiffs allege that Defendant violated the FHA for failing to
stop discriminating and harassing conduct by neighbors based on religion.
Plaintiffs have failed to establish that Defendant owes a duty to take steps to
prevent such conduct, because:
(1) Religious discrimination which takes place after the acquisition of a
dwelling is not actionable under the Fair Housing Act; and
(2) Under either §§ 3604 or 361, Defendant owes no duty and is not liable
for the intervening discriminating actions of other tenants.

(Compl. ¶ 5. (Compl. cotenants repeatedly harassed them because of Plaintiffs’ religion.) The alleged discrimination includes defacement of a flyer with religious slurs. writing epithets on Plaintiffs’ car. 15. and threats of physical harm. ¶ 14. citizens who identify themselves as Muslim. based on religious intolerance on the part of other tenants.Accordingly. which was wholly and exclusively carried out by neighbors at Sheridan Apartments. ¶ 14. (Compl. and Sara Hussain wears a hijab. (Compl.) Plaintiffs contend that Defendant failed to take reasonable steps in response to discriminatory and harassing conduct based on religion. (Compl. 14.) 2 . (Compl. a note taped onto Plaintffs’ mailbox. yelling. (Compl.) Plaintiffs moved into Sheridan Apartments in February of 2013. both of which Plaintiffs contend are outward displays of their religion and make them identifiable to others as Muslim.) Plaintiffs are U. Plaintiffs’ Complaint should be dismissed with prejudice.) Plaintiffs contend that this harassment was severe and pervasive. STATEMENT OF FACTS Plaintiffs Adam and Sara Hussain are married with two children and reside at Sheridan Apartments.) Plaintiffs allege that after moving into the apartment managed by Defendant.none of whom are identified by name in the Complaint. ¶ 10.) Plaintiff Adam Hussain has a beard. ¶ 2. beer cans thrown onto Plaintiffs’ patio.S. a residential dwelling owned and managed by Defendant. 11. ¶ 9. (Compl. ¶8. ¶ 15.

) The lease does not contain any requirement that a tenant act in a way to avoid personal disputes with other tenants. Exhibit E. 20. effective action to prevent or end the harassment. (Compl. ¶ 15. Plaintiffs claim Defendant’s failure to take reasonable steps to prevent the adverse actions by cotenants violates the Fair Housing Act. asking Defendant to intervene to prevent cotenant harassment.) The “Rules and Regulations” of the lease state.” (Compl. but solely acts by neighbors whose basis for discriminating alleged to have been Plaintiffs’ religion. §§ 3604(b) and 3617. (Compl.In March of 2013. again not identifying any cotenant by name. (Compl. ¶ 17. stereos or other such devices in such a manner as to disturb others. 21). ¶ 16. ARGUMENT The Complaint should be dismissed because Plaintiffs’ claim for discrimination after the acquirement of a residence is not actionable under the Fair Housing Act.S.) Plaintiffs subsequently sent more letters. 2013 and informed them that Quality Properties does not have an obligation to intervene in personal disputes between tenants. that tenants are to protect the quiet enjoyment of other residents and not play radios. (Compl.C. The harassment is furthermore solely attributed to the time period after Plaintiffs began renting the apartment. A Rule 12(b)(6) tests the legal sufficiency of a complaint. Plaintiffs have not alleged any harassment directly carried out by Defendant. Exhibit A. in pertinent part.) Defendant responded to Plaintiffs in writing on May 13. In evaluating a 3 . Plaintiffs contacted Defendant via telephone and writing and asked Defendant to “take immediate. 18. 42 U.

intimidate. familial status. sex. religion. or national origin.Ct. or in the provision of services or facilities in connection therewith. Although a complaint need not state detailed factual allegations. Section 3404(a) makes it unlawful for a person to “refuse to sell or rent after the making of a bona fide offer.” Section 3617 furthermore makes it unlawful for a person to “coerce. Ct. 127 S. 1937 (2009)) (alteration in original). 129 S. and a “formulaic recitation of the elements of a cause of action will not do. or interfere with any person in the exercise or enjoyment of. or national origin.. it must contain sufficient factual allegations to “raise a reasonable expectation that discovery will reveal evidence” of the elements of the claim. or on account of his having aided or encouraged any other person in the exercise or enjoyment of. Additionally the court must determine if a claim to relief is plausible on its face. or on account of his having exercised or enjoyed.” Section 3404(b) prohibits “discriminat[ion] against any person in the terms. any right granted or protected by 4 . religion.motion to dismiss. 688 F. Iqbal. v. because of race. 1955. a dwelling to any person because of race. Heinrich v. the court assumes all factual allegations in the complaint are true and construes them in the light most favorable to the plaintiff. familial status. threaten. color. 2012) (quoting Ashcroft v. Twombly. The complaint must provide more than labels and conclusions. sex. at 1955.3d 393. color. or otherwise make unavailable or deny. 1965 (2007).. Inc. Waiting Angels Adoption Servs. conditions or privileges of sale or rental of a dwelling. 403 (6th Cir. or to refuse to negotiate for the sale or rental of. Bell Atlantic Corp.’ Id.

state claims of religious discrimination which took place after they began occupying the apartment owned by Defendant. Defendant therefore is not required to take corrective action to prevent alleged discrimination. Plaintiffs’ allegations.” Plaintiffs contend that the hostile housing environment they experienced after renting from Defendant is applicable under the statute.2d 868. When interpreting a statute. 112 S. the statute does not regulate conduct following the sale of property and only addresses conduct leading up to the terms of the sale or rental. but the statute’s context. as this court should apply. and § 3604 fails to address such post-acquisition claims. Ct. courts must look not only at the meaning of the language. SouthSuburban Housing Center v. yet Plaintiffs have failed to state facts alleging a cognizable claim under the sections of the FHA from their complaint. The statute’s pre-acquisition application is straightforward in that it makes refusing to sell or rent a dwelling based on discrimination unlawful. When looking at the statute as a whole and determining meaning from its 5 . Greater South Suburban Board of Realtors. would properly link it to services or facilities pertaining to the initial sale or rental contract.” Yet a narrow reading. purpose and policy. 935 F. As clearly stated by the plain language of § 3604(a). Nicklos Drilling Co.section… 3604. Estate of Cowart v. 882 (7th Cir. 1991).. 2589. 2594 (1992). if taken as true. Section 3604(b) has led to considerable debate because of the “in connection therewith” phrase linked to “provision of services or facilities.

Allowing Plaintiffs’ claims to continue would be taking the FHA far 6 . misrepresentations of availability.” Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n. with discriminatory ads. and an amendment would be a proper way to deal with a post-acquisition claim for reasons of administrability. while § 3606 bans discrimination in brokerage organizations and related services. To construe that it applies to an ongoing transaction and continues to give rights during a tenant’s rental occupancy. This later amendment to the statute also contains the language “a person residing in or intending to reside in that dwelling after it is so sold. No such amendment as yet has been added to § 3604. or made available” in § 3604(f)(1)(B). § 3604(c). and statements. notices. 2004). respectively. Allowing post-acquisition claims is clearly in conflict with the overall statutory scheme. Section 3605 outlaws discriminatory home financing and other residential real estate-related transactions.context.3d 327. and handicap discrimination. 388 F. indicating that unlike § 3604(b) it clearly applies to post occupancy requirements. “The Fair Housing Act contains no hint either in its language or its legislative history of a concern with anything but access to housing. "blockbusting". A nearly identical prohibition to § 3604(a) which deals with handicap discrimination is contained in § 3604(f) (1). this court will be taking a perilous step of sliding down a slippery slope of future claims never intended by the legislature when the statute was enacted. 331 (7th Cir. Id. Section 3604's remaining subsections deal. rented. there are other clear indications that the sections of the FHA cited by Plaintiffs do not apply post-occupancy.

. when minorities were denied access to affordable housing as they migrated from rural southern areas in pursuit of employment opportunities in cities. As a result.. and to related indirect actions arising from efforts to secure housing. 743 F. several recent cases have held that the FHA applies to post-acquisition claims. The FHA was passed in 1968 amid significant racial segregation. Section 3604(a). which has 7 . 978 F.). in particular. barriers during the acquisition phase such as discriminatory pricing or redlining have been deemed unlawful. 1210 (7th Cir.Ct. Williams v. Dillon v. and as a matter of law Plaintiffs’ complaint should be dismissed. Clair. AFBIC Development Corp. e. American Family Mut. v.2d 287 (7th Cir. cert. 597 F. Courts have applied this subsection to actions having a direct impact on the ability of potential homebuyers or renters to locate in a particular area. See.2d 1207.C.2d 819 (8th Cir.. They were confined to slum-like overcrowded neighborhoods.beyond its intended application. 495 & 507 (1974). Notwithstanding the language. Ins. history and policy.A.P. 1984). the history of the Fair Housing Act and the circumstances under which it was enacted clearly show that its policy and purpose was to break down barriers and provide integrated housing. N. 499 F. Despite the FHA’s statutory language. Southend Neighborhood Improvement Ass'n v.2d 556 (5th Cir. County of St. Matthews Co.. Co. 95 S. and the Fair Housing Act’s purpose was to desegregate such areas. has been designed to ensure that no one is denied access to housing for discriminatory purposes. denied.g. 1992).A. 1979).

Some courts have allowed narrowly applying post-acquisition claims and refused to apply § 3604(b) unless the situation amounted to constructive eviction. Bloch.3d 771 (7th Cir. 364.” Id.3d 327 at 331. at 563.3d at 741.. Since the rights of the statute pertain to acquisition. since Plaintiffs still reside at Defendant’s apartment and the situation has never amounted to constructive eviction. Many courts continue to apply the FHA to pre-acquisition claims only. 2009). Although the Sixth Circuit has yet to directly address post-acquisition claims.led to a split in circuit courts over this largely unresolved issue. Tex. a step closer to post acquisition claims. Frischholz. it was noted that “religiously motivated harassment of owners or tenants does not violate the Fair Housing Act or its regulations. Bloch concerned a Jewish family alleging religious discrimination. Cox. Life Ins. 430 F. Adding to this debate is the rule that the FHA is to be given a generous construction. 587 F. These courts have focused on availability. Bloch v. 93 S. short of “redlining” 8 .3d 734 (5th Cir. Co. 430 F.3d at 782.. Citing Halprin. Halprin. 587 F. 368 (1972). Metro. 388 F. Cox v. City of Dallas. attributable to a “hallway rule” enacted so that they were not allowed to keep a mezuzot outside their door as required by their faith. Ct. The case before this court concerns an issue of habitability. Habitability in these decisions is still considered outside the FHA’s scope. and have held that allegations after the initial sale or rental of a dwelling are not cognizable. the Seventh Circuit has held that although rights of enjoyment are granted in § 3604. Trafficante v. 2005). there is no claim cognizable for post-sale harassment.

Vigil. 583 F.3d 690 (9th Cir. Honce v. Cisneros. 388 F. 364–65 (8th Cir. 1 F.3d 1004. Such courts have extended § 3604(b)’s use of the word “privileges” and singularly interpreted the word to imply “continuing rights. Other courts likewise have addressed the possibility of constructive eviction amounting to “constructive discharge. 1993).3d 327 at 329. The courts that have refused applying § 3604 to post acquisition claims have reasoned that if the claims were cognizable. Koch. such as the privilege of quiet enjoyment of a dwelling. Halprin v. 388 F. United States v. Neb.” DiCenso v.(or steering tenants away from a sale or rental of a dwelling in the acquisition phase) or making the situation so intolerable so that a tenant were forced to leave. Some courts have taken the big leap of allowing habitability to be addressed under the FHA.d at 713. 1008 (7th Cir.3d 361. 96 F. 2009). 583 F3. 2d 970 (D. 2004). 352 F. Neudecker v. 2004). Boisclair Corp. would not constitute interference with these protected rights. Modesto involved a Hispanic neighborhood that claimed the city discriminated against them in the provision of municipal services. Improvement v. City of Modesto.3d 1085. despite the absence of constructive eviction. at 696. Concerning Cmty. Indeed. it was “an endeavor that would have required careful drafting in order to make sure that quarrels between neighbors did not become a routine basis for federal litigation.. Supp. Id. such causes of action would have been expressly stated in the statute. The Comm. 329 (7th Cir.” Modesto. 351 F. The court concluded a 9 .3d 327. Prairie Single Family Homes of Dearborn Park Ass'n.2003) (per curiam). 1996).” Halprin. 1090 (10th Cir.

3d 1355 (5th Cir. 227–28 (5th Cir. City of Dallas.2007) (per curiam). 227. that a § 3617 applies only to conduct that implicates the availability of housing rather than merely habitability. 734 F. In a recent case. Tex..” Id. 2009).“natural reading” of the statute would encompass claims after a tenant has acquired possession of a dwelling.” Id. Michigan Protection & Advocacy Serv.. Id.. Many courts have held. however.Appx. LLC v. Reulet cited Cox and Halprin to conclude that the plaintiff's claims under both § 3604 and § 3617 must “fail because they go to the habitability of her condominium and not the availability of housing.3d 337. Hidden Vill. independently without a § 3604 violation. Supp. the Sixth Circuit has also addressed if whether a § 3617 claim can stand on its own without other underlying claims. 303 (N. Hidden Village concerned housing advocates who had aided tenants in exercising their 10 . Sherwood Valley I Council of Co-owners. these courts have ignored the overall context of the statute. In allowing claims of habitability to continue under the FHA. 633 F. in McZeal v.3d 519 (6th Cir. Controversy also exists as to whether a § 3617 claim can stand on its own or whether a sufficient nexus between § 3617 and § 3604 must exist. City of Lakewood. Dev.. v. Similarly. 1994). 346 (6th Cir. LLC v.D. Babin. 18 F. Reule v.2001) (per curiam) (unpublished table decision). 252 F. 235 Fed. Ohio. [plaintiff's] claim under § 3617 must also fail. Inc. ignores the statute’s textual language. Ocwen Financial Corp. 2d 287. the Fifth Circuit stated: “[b]ecause his § 3605 claim fails. AHF Cmty. To allow for a § 3617 claim to exist. 2013).

this court will be extending the FHA beyond its intended scope and would lead to a flood of litigation regarding post-acquisition claims. they do not allege that they have been discriminated against before occupancy nor have they ever been under threat of eviction or loss of their homes. at 523. The statute’s very purpose: providing affordable housing to those who need it. When faced with discrimination problems. what is the appropriate response and where is the line drawn? Even if post-acquisition claims deserve a remedy by law. would be undermined in that it would hurt rental properties the most by driving up costs as a direct result of increased litigation. The facts also indicated alleged instances where the tenants had been discriminated against before occupancy. it should not be through judicial action and should be through amendment to the FHA. 11 . Id. at 528. Id.housing rights and were racially discriminated against post-occupancy. The courts would be applied with the task of distinguishing between simple disputes and discrimination based on protected class. To permit Plaintiffs’ case to continue. Plaintiffs in this case before the court are already lessees of housing. and having a statute would be the proper way to address this issue for reasons of efficient use of judicial resources and administrability. and the harassment escalated after the tenants moved in. The statute has been amended before to add disability claims. The court pointed to the fact that the advocates had helped the tenants during the acquisition phase as reason for not needing an underlying § 3604 claim.

or privileges of employment. religion. a claim cannot be brought against Defendant for cotenant harassment. Reeves v. Carrollsburg Condo.Ct. Cases that have analyzed if a landlord could be liable for the discriminatory actions of third parties have employed an agency-principle approach. Dec. color. § 2000e-2(a)(1) (2014). in essence.C.C. 106 S. and both were passed 12 . sex. . Dist. Title VII makes it “an unlawful employment practice for an employer .1.” 42 U.S. to discriminate against any individual with respect to his compensation. at *1 (D. and have attempted to find parallels between Title VII workplace discrimination and landlord-tenant relationships. Both statutes were passed during the civil rights era of significant racial tension. none of whom are identified by name in the complaint. conditions. Plaintiff. LEXIS 21762. or national origin. cotenant harassment is even further outside the scope of what courts have determined to be a landlord’s liability under the FHA. wants Defendant to control the actions and to be liable for the behavior of unnamed parties. Unit Owners Ass'n. Even if this court finds Plaintiffs’ post-acquisition claims are actionable. 1997). This language is admittedly similar to § 3604(b). Meritor Sav. Even if post acquisition claims are actionable under § 3604 or § 3617.D. 2399 (1986). Vinson. because of such individual's race. 18. terms.S. . the facts all pertain to actions from neighbors. Not a single allegation from Plaintiffs’ complaint states a claim of harassment by Defendant. Bank v. 1997 U. The rules for workplace harassment are also well established in the courts.

to decide if a claim is actionable “when the offensive behavior unreasonably interferes with use and enjoyment of the premises. Ohio Civ. an employer may be liable for a nonsupervisory employee’s discrimination if they knew or should have known the harassment was taking place. Forklift Sys.2d 726 (Ohio 2000).. the FHA is to break down barriers to opportunities. Id. In this sense. Some courts have attempted to apply Title VII to the housing context. at 418 (citing Hampel v. v.E. 367. the FHA is a rule to govern a transaction (Halprin. Harris v. Title VII was passed with the purpose to end patterns of discrimination in the workplace. 1 F.3d at 1090. Inc. 418 (Ohio 2008). Akron Metro Hous. Auth. Rights Comm.E. But while the FHA was concerned with providing access to housing.. The Ohio Supreme Court addressed a case where a tenant complained to her apartment manager of repeated racially motivated harassment by a cotenant. and a lawsuit was filed citing the landlord’s failure to take corrective action. Food Ingredients Specialties. 892 N. Burlington 13 . (2000). 371 (1993).. 114 S. The court rejected the use of Title VII’s agency principles.” Honce. whereas Title VII’s purpose is to provide a remedy for injury.3d at 328) and Title VII is an ongoing rule meant to govern throughout the entire employer-employee relationship. The plaintiff had made both oral and written complaints to her property manager. determining that a landlord does not exert the same control over a tenant as employeer-employee relationships. Inc. The court recognized that through an agency approach. 729 N.with the ultimate purpose of finding measures to end discrimination. At its core. 388 F. Ct.2d 415.

118 S.” Id. (4) “some basis for imputing liability to [the employer].” An employee’s conduct and actions are directly observed and controlled by a superior through daily interaction. In the instant case before this court. nor have they filed 14 .3d 261.. Imputing liability to Defendant is an irrational expectation. at 420. eviction is not even within the Defendant’s power. There are no indications that Plaintiffs have called police as the result of personal physical threats. and a landlord cannot possibly be expected to have the same control. There are further reasons that a vicarious liability theory is improper in this context. 2257 (1998). To prevail on a Title VII claim. the employee must show (1) unwelcome conduct. immediate consequences. 2275 (1998)).. The problem lies in the fourth element. Inc. Faragher v.” Matvia v.Industries. v. A tenant is seen intermittently. Ellerth. 259 F. An employee’s behavior can therefore have direct. (3) sufficiently pervasive or severe so as to create a hostile environment. 118 S. Boca Raton. (2) based on membership of a protected class. and Plaintiffs have ignored the possibility of more readily available remedies. and what constitutes “some basis. 2001). Inc.Ct. 266 (4th Cir. The cotenants who harassed Plaintiffs were engaging in personal activity outside the contractual relationship between tenants and Defendant. The court noted that “[t]he power of eviction alone… is insufficient to hold a landlord liable for his tenant's tortious actions against another tenant. since the cotenants who have allegedly engaged in religious discrimination against Plaintiffs are unknown by name.Ct. Bald Head Island Mgmt.

Ultimately the court decided that the landlord had violated the plaintiff’s right to quietly enjoy her lease in violation of § 3617. the plaintiff was an African American woman who had been subjected to racial epithets by her neighbor. For the courts to impose liability onto a landlord for personal disputes between neighbors is a perilous step towards opening the floodgates of litigation.this claim against the parties who are actually responsible for the harassing conduct. The property manager had released his medical information to other tenants in the building. 1989). 351 F. at 329. 2003). the plaintiff had played loud music. Boisclair concerned a man with OCD who was harassed by his neighbors. Establishing such precedent would be contrary to public policy and the purpose of the FHA. Id. Supp. prompting the harassment. There were many indications that the harassment was two-sided. Id. Neudecker concerned some affirmative actions taken by the landlord.D. and the two tenants had engaged in a long standing dispute.3d 327. 15 . this court will make Defendant the insurers of cotenant actions. 219 (E. As stated by Judge Posner in Halprin. Very few courts have addressed landlord liability for cotenant actions. at 219. Neudecker v. In Bradley v. 362 (8th Cir. Halprin. The manager also threatened to evict him for complaining. at 364. 217. 707 F. Carydle Enterprises. at 233. the drafters of the FHA did not intend for common quarrels to become the basis for routine litigation.3d 361. Id. Id. The apartment complex had attempted to evict them both. If Plaintiffs’ claims prevail. 388 F. Va. and not just their inaction with regard to discrimination by cotenants.

more established remedies available by law. 16 .the habitants of rental dwellings. It is also unfair to impute liability for the harassment of third parties onto landlords. Defendant respectfully requests that Plaintiff's Complaint be dismissed in its entirety and with prejudice. CONCLUSION For all of the foregoing reasons.since it will further drive up costs to those who need affordable housing the most. when there are other. Villanueva Attorney for Quality Properties. Inc. Catherine J.