356 F.3d 1058 (9th Cir. 2004), 02-16820, Edwards v. Marin Park, Inc.

Docket Nº:02-16820.
Citation:356 F.3d 1058
Party Name:Priscilla EDWARDS, Plaintiff-Appellant, v. MARIN PARK, INC., a California Corporation; Marin Mobilehome Park; Doris Bertram, individually and as personal representative of George Bertram, deceased; Carole Holley; John Kidd; Connie Kidd, Defendants-Appellees.
Case Date:January 26, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1058

356 F.3d 1058 (9th Cir. 2004)

Priscilla EDWARDS, Plaintiff-Appellant,


MARIN PARK, INC., a California Corporation; Marin Mobilehome Park; Doris Bertram, individually and as personal representative of George Bertram, deceased; Carole Holley; John Kidd; Connie Kidd, Defendants-Appellees.

No. 02-16820.

United States Court of Appeals, Ninth Circuit

January 26, 2004

Argued and Submitted Dec. 5, 2003.

Page 1059

Vincent J. DeMartini, DeMartini & Walker, San Rafael, CA, for the defendants-appellees.

Thomas A. Moore, Law Office of Thomas A. Moore, San Francisco, CA, Jack V. Valinoti, Leland, Parachini, Steinberg, Matzger & Melnick, LLP, San Francisco, CA, for the plaintiff-appellant.

Appeal from the United States District Court for the Northern District of California; Saundra B. Armstrong, District Judge, Presiding. D.C. No. CV-01-04294-SBA.

Before: HAWKINS, PAEZ, and BERZON, Circuit Judges.

BERZON, Circuit Judge:

In this appeal we consider whether a plaintiff may be sanctioned for declining the opportunity to amend her complaint. We answer in the negative. We also address the pleading standard for discrimination claims under the Fair Housing Act, 42 U.S.C. § 3601 et seq. 1


Since 1992, Priscilla Edwards has lived in a mobile home 2 in the Marin Park

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development in Greenbrae, California. See generally Hacienda Valley Mobile Estates v. City of Morgan Hill, 353 F.3d 651 (9th Cir. 2003) (describing relationship of a mobile home park to a tenant-homeowner). Edwards alleges--accurately, we assume at this stage of the litigation--that the management of the park sent her unjustified, harassing pre-eviction notices in order to drive her from her tenancy. The notices, which the parties call "7 Day Legal Notices," were first sent on January 27 and January 30, 1999. These missives apparently notified Edwards that her home was not in compliance with various provisions of California's Mobilehome Residency Law, Cal. Civil Code ch. 2.5. 3 On February 2 and April 2, 1999, Edwards wrote the Park's management, describing the two notices as "fraudulent, malicious, oppressive, willful and negligent," while apparently failing to explain in what respect either notice was in fact any of those things. Edwards's second letter explained that the Park's notices had caused her to suffer various medical and psychological ailments.

Further notices followed, abating once Edwards sued Marin Park, pro se, in California Superior Court on July 5, 2000. Edwards dropped her complaint in April 2001. As she puts it, the "peace and quiet" she had enjoyed during the pendency of the suit led her to believe no adjudication would be necessary. Harassing inspections and notices from Marin Park allegedly resumed the day the suit was dismissed.

In July 2001, Edwards wrote to the California Department of Housing and Community Development and several California elected officials complaining of unsafe conditions at the park and of management's attempts to enforce minor building standards violations against three female tenants while the more grave safety problems went unrepaired. Days later, 4 Edwards was offered a month-to-month or one-year renewal of her lease, rather than, as she had expected and previously enjoyed, a lease for a longer term.

Edwards sued again, this time in federal court. Her amended, pro se complaint claimed (1) that under the federal Fair Housing Act (FHA), 42 U.S.C. § 3601et seq., Marin Park had illegally retaliated against Edwards for her tenant activism; (2) that the "7 Day Legal Notices" amounted to mail fraud actionable under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq.; (3) that Marin Park's reprisals and harassment violated Edwards's rights under the First and Fourteenth Amendments; (4) that the disrepair of the park's roads constituted a common-law nuisance; and (5) that the defendants had intentionally inflicted emotional distress, actionable under state law.

The defendants moved to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6), "failure to state a claim upon which relief can be granted." Edwards then retained counsel and obtained extra time in which to file a response. The district court, in an order filed July 25, 2002, dismissed the FHA retaliation claim without leave to amend because Edwards "failed to allege that she engaged in any 'protected activity' " under the FHA. In so ruling, the district court held that protesting dangerous conditions on residential premises is not, as such, a protected activity.

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The RICO claim was dismissed with leave for Edwards to amend so as to plead the alleged fraud with the specificity demanded by Federal Rule of Civil Procedure 9(b). 5 The constitutional claims were dismissed, as none of the defendants is a state actor, but Edwards was given leave to amend with analogous state constitutional claims that might be viable against private parties. The nuisance and emotional distress claims were dismissed with prejudice, the former for failure to comply with a statutory notice requirement, see Cal. Civil Code § 798.84, the latter because the conduct as alleged was insufficiently outrageous, as a matter of law, to state a claim.

The court's dismissal of the RICO claim granted leave to amend by August 2, 2002, only one week after the initial dismissal order. "Failure to file an amended pleading by August 2, 2002," the court warned, "will result in the dismissal of this action, with prejudice." On August 2, rather than file an amended complaint or motion seeking more time, Edwards filed an "Election to Stand Upon the Sufficiency of Amended Complaint Pleadings" indicating her desire to "expedite an appeal" to this court. The district court disapproved of Edwards's stance, "counstru[ing] this curious pleading as a deliberate refusal to amend the complaint." Stating that it had considered the five factors set forth in Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), the court dismissed the complaint with prejudice under Federal Rule of Civil Procedure 41(b)--providing for dismissal "[f]or failure of the plaintiff ... to comply with ... any order of court"--and entered judgment for defendants with prejudice.

Edwards appeals from the dismissal of the FHA and RICO claims. For the reasons given below, we reverse as to the FHA claim but affirm the Rule 12(b)(6) dismissal of the RICO claim. We briefly address her state-law claims as well.


A. Edwards's FHA Claim

We review de novo the district court's grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim. Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir. 1995). A motion under Rule 12(b)(6) should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), construing the complaint in the light most favorable to the plaintiff, Geraci v. Homestreet Bank, 347 F.3d 749, 751 (9th Cir. 2003).

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), instructs us that the standards for pleading discrimination claims are no higher than the relaxed notice pleading standard of Federal Rule of Civil Procedure 8(a), viz., a "short and plain statement of the claim showing that the pleader is entitled to relief." Swierkiewicz overruled the Second Circuit's practice of imposing, at the dismissal stage, the prima facie case framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Swierkiewicz, 534 U.S. at 510-11, 122 S.Ct. 992. Rather than adduce a prima facie claim in the complaint itself--before discovery, often necessary to uncover a trail of evidence regarding the defendants' intent in undertaking allegedly discriminatory action, has taken place--a plaintiff need only "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512, 122 S.Ct. 992

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(quoting Conley, 355 U.S. at 47, 78 S.Ct. 99). The prima facie case is "an evidentiary standard, not a pleading requirement." Id. at 510, 122 S.Ct. 992. Failure to adduce it may result in a later loss at summary judgment, but failure to plead it does not support dismissal at the outset. Id. at 510, 514, 122 S.Ct. 992.

While Swierkiewicz arose in the context of employment discrimination, its reasoning applies to any claim to which the McDonnell Douglas framework is applicable, and courts have readily applied Swierkiewicz to FHA claims. See, e.g., Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 232-33 (6th Cir. 2003); Nat'l Fair Housing Alliance, Inc. v. Prudential Ins. Co., 208 F.Supp.2d 46, 51-52 (D.D.C.2002); Burrell v. State Farm & Cas. Co., 226 F.Supp.2d 427, 434 (S.D.N.Y.2002). Moreover, Swierkiewicz's liberal reading of Rule 8(a) applies with equal force to discrimination and retaliation claims, so it must similarly apply to FHA retaliation claims. See Walker v. Thompson, 288 F.3d 1005, 1011 (7th Cir. 2002) (applying Swierkiewicz to prisoner retaliation claim); Castillo v. Norton, 219 F.R.D. 155, 160-62 (D.Ariz.2003) (applying Swierkiewicz to employment discrimination and retaliation claims). Edwards's FHA claim thus need only satisfy the Rule 8(a) notice pleading standard reaffirmed in Swierkiewicz to survive a Rule 12(b)(6) dismissal.

The most germane paragraphs of Edwards's amended complaint read:

Defendants ... retaliated against plaintiff for engaging in protected acts ... in order to ensure fair housing conditions, including a disproportionate number of women seemingly targeted by Defendants ... who met together to speak about having noticed the...

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