Louisiana Acorn Fair Housing v. Quarter House

• Decision Date: 09 January 1997
• Docket Number: Civil Action No. 96-2128.
• Citation: 952 F.Supp. 352
• Parties: LOUISIANA ACORN FAIR HOUSING v. QUARTER HOUSE, Oak Ridge Park, Inc., et al.
• Court: U.S. District Court — Eastern District of Louisiana

952 F.Supp. 352

LOUISIANA ACORN FAIR HOUSING v. QUARTER HOUSE, Oak Ridge Park, Inc., et al.

Civil Action No. 96-2128.

United States District Court, E.D. Louisiana.

January 9, 1997.

COPYRIGHT MATERIAL OMITTED

Spencer Livingston, New Orleans, LA, Thomas Wilson Glass, Citizens Consulting, Inc., New Orleans, LA, for Louisiana Acorn Fair Housing.

Ronald L. Naquin, Wilbur Anthony Toups, III, Scott Cameron Barney, Robert Lloyd Clayton, Chaffe, McCall, Phillips, Toler & Sarpy, LLP, New Orleans, LA, for Quarter House, Oak Ridge Park, Inc., Quarter House Owners' Association.

Brian F. Heffernan, Paul F. Hancock, Jerri U. Dunston, U.S. Department of Justice, Civil Rights Division, Housing & Civil Enforcement Section, Washington, DC, for U.S.

Marc Norman DuBois, New Orleans Legal Assistance Corp., New Orleans, LA, Stacy Elizabeth Seicshnaydre, Greater New Orleans Fair Housing Action Center, Inc., New Orleans, LA, for Greater New Orleans Fair Housing Action Center.

ORDER AND REASONS

CLEMENT, District Judge.

Before the Court are defendants Quarter House, Oak Ridge Park, Inc. and Quarter House Owner's Association Inc.'s Motions to Dismiss pursuant to Fed.R.Civ.Proc. 12(b)(1), Rule 12(b)(4), Rule 12(b)(6) and Motion for Summary Judgment pursuant to Fed.R.Civ. Proc. 56(b). For the following reasons, defendants' Motion to Dismiss as to Quarter House is GRANTED; defendants' Motion to Dismiss for insufficiency of process pursuant to Rule 12(b)(4) is DENIED; defendants' Motion to Dismiss Quarter House Owners' Association and Oak Ridge Park is DENIED; Defendants' Motion for Summary Judgment as to Quarter House Owners' Association is GRANTED; defendants' Motion to Dismiss plaintiff's claims under Title 42 U.S.C. §§ 1981 and 1982 is DENIED; defendants' Motion to Dismiss plaintiff's claim under the Thirteenth Amendment is GRANTED; and defendants' Motion for Summary Judgment as to Oak Ridge Park is DENIED.

BACKGROUND

Quarter House is the trade name of a timeshare resort which has provided recreational units adjacent to the French Quarter since 1983. According to the defendants, the Quarter House Owners' Association, Inc. ("Owners' Association") is composed of purchasers of Quarter House timeshare units which administers and operates the timeshare units. The Owners' Association appoints a board of directors and officers to promulgate rules and regulations regarding the use of the units and the common elements which all units share, as well as assessing fees necessary to keep the units and common areas in good working order. The defendants claim that the Owners' Association is not involved at any level in the sales or marketing of the Quarter House timeshare units.

In order to market Quarter House timeshare units, field marketing representatives ("FMRs") have been employed to approach pedestrians in and around the French Quarter and convince them to tour the Quarter House timeshare units. The tours take place on the premises of the Quarter House under the direction of a touring agent. The complaint alleges that these FMRs, whose pay checks are drawn from Oak Ridge Park Inc.'s bank account, are paid on commission and are only compensated when they send prospective residents to Quarter House who comply with Quarter House's qualification list. According to the complaint, this list is communicated verbally by Quarter House employees to the FMRs. The qualification list requires that prospective buyers cannot be 1) African-American; 2) aliens; 3) of mid-Eastern or Indian cultures or religions; 3) physically unable to climb stairs; and 4) pregnant women, families with more than two children or families with children under the age of 10. The complaint alleges that when FMRs would send touring agents prospective buyers who were members of one of the above mentioned groups, the agents refused to show these individuals timeshare units while offering tours to other buyers who did not belong to one of the groups. On June 24, 1996, plaintiff filed the present suit, alleging violations of Title VIII of the Civil Rights Act of 1968, as amended, 42 U.S.C. § 3601, et seq. ("the Fair Housing Act" or "the FHA"), La.R.S. 51:2601 et seq. ("the Louisiana Open Housing Act"), 42 U.S.C. §§ 1981 and 1982, and the Thirteenth Amendment.

ANALYSIS

1. "Quarter House" Status as a Defendant

Defendants first argue that defendant Quarter House should be dismissed as a party pursuant to Rule 12(b)(6) because Quarter House is only a trade name and not a proper party defendant.

Article 736 of the Louisiana Code of Civil Procedure provides that "a person who does business under a trade name is the proper defendant in an action to enforce an obligation created by or arising out of the doing of such business." Louisiana courts have held that a trade name has no separate existence apart from the individual doing business under that trade name. Trombley v. Allstate Insurance Co., 640 So.2d 815, 817 (La.App. 3 Cir.1994). Moreover, a trade name is not a separate entity capable of being sued. Guidry v. City of Houma, 471 So.2d 1056, 1058 (La.App. 1 Cir.1985).

Given that a trade name is not a separate entity capable of being sued under Louisiana law, the Court GRANTS defendants' motion to dismiss Quarter House as a defendant.

2. Service of Process on Quarter House Owners' Association, Inc. and Quarter House

Defendants next move for dismissal of claims against Quarter House Owners' Association and Quarter House pursuant to Rule 12(b)(4) on the ground that the summons served upon Quarter House Owners' Association incorrectly identified defendant as "Quarter House Homeowners Association, Inc." As the Court has already dismissed Quarter House as a defendant, the Court will only address whether there was insufficient process on defendant Quarter House Owners' Association.

"When an alleged defect in service is due to a minor, technical error, only actual prejudice to the defendant or evidence of a flagrant disregard of the requirements of the rules justifies dismissal." Libertad v. Welch, 53 F.3d 428, 440 (1st Cir.1995); see also 4A C. Wright and A. Miller, Federal Practice & Procedure, Civ.2d § 1088; Sanderford v. Prudential Ins. Co. of America, 902 F.2d 897, 900 (11th Cir.1990); Crane v. Battelle, 127 F.R.D. 174, 177 (S.D.Cal.1989) (erroneously naming defendant "Leonard Colin" rather than "Colin Lennard" in the summons and complaint is a mere technical error that does not prejudice defendant's rights when there is actual notice).

Defendants have offered no evidence in their memoranda that Quarter House Owners' Association did not receive notice or has suffered any prejudice from plaintiff's technical error. The Court finds that plaintiff's technical error in identifying defendant as "Homeowners" as opposed to "Owners" does not warrant dismissal under Rule 12(b)(4).

3. Defendants' Rule 12(b)(6) Motion as Quarter House Owners Association and Oak Ridge Park, Inc.

Defendants next claim that plaintiff has failed to allege a claim against Quarter House Owners' Association and Oak Ridge Park, Inc. under Rule 12(b)(6) and that plaintiff has failed to comply with Fed.R.Civ.Proc. 8(a).

Under Fed.R.Civ.Proc. 8(f), a complaint must be construed liberally so as to do substantial justice. Palmer v. City of San Antonio, Texas, 810 F.2d 514, 517 (5th Cir.1987); U.S. v. Uvalde Consol. Independent Sch. Dist., 625 F.2d 547, 549 (5th Cir.1980). A dismissal for failure to state a claim upon which relief may be granted cannot be upheld "unless 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, 102, 2 L.Ed.2d 80 (1957). In reviewing such a dismissal, a court must examine only the pleadings, accept the factual averments as true, and view them in the light most favorable to the plaintiff. Rankin v. City of Wichita Falls, Texas, 762 F.2d 444, 446 (5th Cir.1985).

Given plaintiff's complaint and the standard for dismissal under Rule 12(b)(6), the Court finds that plaintiff has stated a claim. Although the complaint is at times vaguely worded and frequently refers obliquely to "Quarter House" or "Defendants," the Court finds that plaintiff has presented sufficient facts under Rule 12(b)(6) to withstand defendants' motion. Plaintiff first alleges that defendant Oak Ridge Park, Inc. owns and manages the Quarter House and that "upon information and belief, defendant Quarter House Homeowners Association, Inc. owns the Quarter House." Plaintiff also states that Quarter House trains and employs FMRs who are paid with checks drawn from Oak Ridge Park's bank account. Taking these factual averments as true and construing them in the light most favorable to the plaintiff, the Court finds that they are sufficient to withstand defendant's Rule 12(b)(6) and comply with the standards of Rule 8.

4. Defendants' Motion for Summary Judgment as to Quarter House Owners' Association, Inc.

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial burden of informing the court of the basis for its motion by identifying portions of the record which highlight the absence of genuine factual issues. Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir.1992), cert. denied, 506 U.S. 825, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). Once the movant produces such evidence, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Id. The nonmovant can satisfy its burden by tendering depositions, affidavits, and other competent evidence to buttress its claim. Id. It may not rest upon mere allegations made in its pleadings or conclusory...