U.S. v. Koch

• Decision Date: 22 December 2004
• Docket Number: No. 8:03 CV 406.,8:03 CV 406.
• Citation: 352 F.Supp.2d 970
• Parties: UNITED STATES of America, Plaintiff, v. John R. KOCH, Defendant.
• Court: U.S. District Court — District of Nebraska

352 F.Supp.2d 970

UNITED STATES of America, Plaintiff, v. John R. KOCH, Defendant.

No. 8:03 CV 406.

United States District Court, D. Nebraska.

December 22, 2004.

Allen W. Levy, Rachel Levinson, Rigel C. Oliveri, Washington, DC, Laurie A. Kelly, Omaha, NE, for Plaintiff.

Brian D. Nolan, Nolan, Olson Law Firm, Justin D. Eichmann, Bradford, Coenen Law Firm, Matthew L. McBride, III, Susan Ann Koenig, Omaha, NE, for Defendant.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW

URBOM, District Judge.

On October 2, 2003, Plaintiff United States of America filed a complaint alleging that Defendant John R. Koch engaged in a pattern or practice of housing discrimination in violation of Title VIII of the Civil Rights Act of 1968 (Fair Housing Act) (FHA), as amended, 42 U.S.C. §§ 3601 et seq. More specifically, the complaint alleges, inter alia, that "[s]ince at least 1996 through the present, the defendant has subjected numerous female tenants and prospective female tenants of the rental properties owned and/or managed by defendant ... to severe, pervasive, and unwelcome verbal and physical sexual advances." (Compl., filing 1, ¶ 6.) This matter proceeded to trial, and at the conclusion of the plaintiff's case in chief, the defendant moved for judgment as a matter of law on certain claims. (See filing 102). This motion was renewed at the close of evidence. (See filing 110.) For the following reasons, I find that the motion must be denied.

I. STANDARD OF REVIEW

Judgment as a matter of law may only be granted when "no reasonable juror could have returned a verdict for the non-moving party." United States v. Big D Enterprises, Inc., 184 F.3d 924, 929 (8th Cir.1999) (citing Rockwood Bank v. Gaia, 170 F.3d 833, 840-41 (8th Cir.1999)). I must:

1) consider the evidence in the light most favorable to the non-moving party, 2) assume that all conflicts were resolved in favor of the non-moving party, 3) assume as proved all facts that the non-moving party's evidence tended to prove, 4) give the non-moving party the benefit of all favorable inferences that may reasonably be drawn from the proved facts, and 5) deny the motion unless all the evidence points one way and is susceptible of no reasonable inferences sustaining the non-moving party's position.

Gaia, 170 F.3d at 841 (citing Denesha v. Farmers Insurance Exchange, 161 F.3d 491, 497 (8th Cir.1998)). All of the evidence in the record, and not just the evidence in favor of the nonmoving party, must be reviewed by a court entertaining a motion for judgment as a matter of law. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

II. ANALYSIS

A. Whether Acts that Occurred After the Aggrieved Persons Took Possession of Rental Properties are Actionable Under the Fair Housing Act

The defendant first "seeks judgment as a matter of law on all post-residence acquisition Fair Housing Act [c]laims asserted pursuant to 42 U.S.C. § 3604(a-c) as they cannot be maintained under the plain language of the statute." (Filing 102 at 2.) In addition, the defendant claims that these "post-residence acquisition" claims cannot proceed under 42 U.S.C. § 3617. (See id. at 4-6.) In other words, the defendant argues that to the extent the aggrieved persons claim that they suffered discriminatory treatment after they moved into the defendant's properties, their claims cannot be maintained under sections 3604 or 3617 of the Fair Housing Act.

I find that the defendant's argument is precluded by Neudecker v. Boisclair Corp., 351 F.3d 361, 364 (8th Cir.2003), wherein the court concluded that "disability harassment in the housing context is actionable under the FHA ...." In Neudecker, the plaintiff, who suffered from obsessive-compulsive disorder (OCD), filed a complaint against the owner of the apartment building in which the plaintiff resided. See id. at 362-63. The plaintiff alleged, inter alia, that the defendant's employees disseminated the plaintiff's private medical information to tenants; that the plaintiff suffered disability-based harassment at the hands of the son of the apartment building manager and the daughter of the assistant manager; that after the plaintiff complained about the harassment, the manager and assistant manager retaliated against the plaintiff; and that the property manager threatened to evict the plaintiff" `as reprisal' for his continued complaints about being harassed." Id. at 363. Clearly, the plaintiff's claims were based upon actions that occurred during his twenty-three year tenancy at the defendant's apartment building; thus, they were "post-residence acquisition" claims, as that term is used by Koch. Noting that "[t]he FHA prohibits discrimination, based on handicap, against any person with respect to the rental of a dwelling or the provision of related services or facilities," id. (citing 42 U.S.C. § 3604(f)), and citing decisions in which "federal courts have permitted claims under the FHA when sexual harassment causes a hostile housing environment," id. at 364 (citing DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir.1996); Honce v. Vigil, 1 F.3d 1085, 1088-90 (10th Cir.1993); Williams v. Poretsky Mgmt., Inc., 955 F.Supp. 490, 495-96 (D.Md.1996)), the Eighth Circuit concluded that the plaintiff's allegations were sufficient to state an "independent claim for disability harassment under the FHA," id. The court also concluded that the plaintiff sufficiently alleged a retaliation claim under section 3617, "because he asserted that [the defendant's] representative threatened to evict him as a reprisal for his complaints that tenants were engaging in disability harassment." Id. at 363-64.

Since the Eighth Circuit has found that "post-residence acquisition" claims based upon a tenant's disability are cognizable under sections 3604 and 3617, and in view of the court's reliance upon cases authorizing FHA claims based upon sexually-hostile housing environment allegations, I believe that the court would reject Koch's assertion that the aggrieved persons' "post-residence acquisition" claims "cannot be maintained under the FHA."

In support of his position, the defendant relies chiefly upon the district court's and Seventh Circuit's opinions in Halprin v. Prairie Single Family Homes of Dearborn Park Ass'n., 208 F.Supp.2d 896 (N.D.Ill.2002), rev'd in part, 388 F.3d 327 (7th Cir.2004).¹ Since the Seventh Circuit criticized the Eighth Circuit's opinion in Neudecker, see 388 F.3d at 329, a careful examination of the Halprin opinions is in order. In Halprin, the co-owners of a home located in the Prairie Single Family Homes subdivision filed a complaint against several defendants, including the subdivision's homeowners' association and a Mr. Ormond, who was a resident of the subdivision and a member and officer of the homeowners' association. The complaint was based upon a number of incidents, including Mr. Ormond's alleged vandalism of the plaintiffs' home; the defendants' alteration and destruction of records in an attempt to conceal Ormond's threats against the plaintiffs; the defendants' threats to force the plaintiffs to sell their home due to an alleged violation of the association's covenants;² the defendants' application of unwanted chemicals to the plaintiffs' lawn; and the defendants' enactment of "several new rules targeted solely at restricting the freedom of plaintiffs to enjoy the use of their home." Halprin, 208 F.Supp.2d at 899. "[T]he entire campaign of harassment was caused or at least influenced by the religion of the Jewish plaintiff." Halprin, 388 F.3d at 328.

The plaintiffs alleged that the defendants' actions amounted to violations of 42 U.S.C. §§ 3604(b)-(c) and 3617. The district court disagreed and dismissed each of these claims. According to the court, the plaintiffs' complaint failed to state a claim under section 3604(b) because "Plaintiffs already owned their home and none of plaintiffs' allegations involve the sale or rental of housing." Halprin, 208 F.Supp.2d at 901 (quoting 42 U.S.C. § 3604(b) (emphasis omitted)). For the same reason, the court concluded that the complaint failed to state a claim under section 3604(c). Id. at 901-03. Finally, the court determined that the section 3617 claim ought to be dismissed for two reasons. First, the court noted that "the Seventh Circuit has instructed that when the alleged violation of § 3617 involves the same conduct and the same party responsible for a violation of § 3604, and the court finds the underlying § 3604 claim meritless, the court should also find the § 3617 claim meritless." Id. at 903. Since the plaintiffs failed to state a claim under section 3604, the court held that the section 3617 claim must also fail. Secondly, the court concluded that the plaintiff's allegations were not severe enough to support a claim under section 3617, because that section only applies to "threatening, intimidating, or extremely violent discriminatory conduct designed to drive an individual out of his home," such as "cross-burning, firebombing homes or cars, shooting shotguns, physical assaults, or throwing Molotov cocktails." Id. at 904-04 (citations omitted).³

On appeal, the Seventh Circuit affirmed the district court's conclusion that the plaintiffs failed to state a claim under section 3604, stating, "Our plaintiffs ... are complaining not about being prevented from acquiring property but about being harassed by other property owners." Halprin v. Prairie Single Family Homes of Dearborn Park Ass'n, 388 F.3d 327, 329 (7th Cir.2004). The court noted that "[a]cts of post-sale discrimination have been litigated successfully under the Act," but found that the "Act's applicability to such discrimination" was not discussed in those cases. Id. The court also acknowledged that other circuit courts of appeals, including the Eighth Circuit in Neudecker, have drawn analogies between the FHA and Title VII and found that certain harassment...