Banks v. Gates Hudson & Assocs., Civil Action No. 1:19-cv-1259

• Decision Date: 23 June 2020
• Docket Number: Civil Action No. 1:19-cv-1259
• Court: U.S. District Court — Eastern District of Virginia
• Parties: MATTHEW BANKS, et al., Plaintiffs, v. GATES HUDSON & ASSOCIATES, INC., et al., Defendants.

MATTHEW BANKS, et al., Plaintiffs, v. GATES HUDSON & ASSOCIATES, INC., et al., Defendants.

Civil Action No. 1:19-cv-1259

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

June 23, 2020

MEMORANDUM OPINION

Plaintiff Matthew Banks ("Banks"), proceeding pro per,¹ and Plaintiff Jessica Britton ("Britton), proceeding pro se,² have filed this action alleging various federal and state law claims against: (i) the manager of the Fountains Condominiums,³ where the plaintiffs live; (ii) the board of directors of the Fountains Condominiums, individually and as the board of directors;⁴ and (iii) two unidentified residents of the Fountains Condominiums, Jane and John Doe.⁵ Initially,plaintiffs also sued the City of Alexandria, but, on November 18, 2019, plaintiffs voluntarily dismissed their claims against the City. See Dkt. 24.

Plaintiffs, in the federal claims in their first amended complaint ("FAC"),⁶ allege in essence that defendants discriminated, harassed, and retaliated against them for Banks' use of an emotional support dog that was over the weight limit for pets at the Fountains Condominium. The Condo Defendants filed a motion to dismiss the FAC on the basis that plaintiffs have failed to state either a federal or a state law claim pursuant to Rule 12(b)(6), Fed. R. Civ. P. Plaintiffs have filed an opposition brief and the Condo Defendants filed replies in support of their motion. On January 13, 2020, oral argument on the motion to dismiss was held. Thereafter, supplemental briefing was filed. Accordingly, the matter is fully briefed and argued and is now ripe for disposition.

I.

Although factual allegations in the FAC are taken as true solely for the purpose of resolving the motion to dismiss, "a legal conclusion couched as a factual allegation" is not accepted as true. Papasan v. Allain, 478 U.S. 265, 283, 286 (1986).

• The Fountains Condominiums is a high-rise condominium in Alexandria, which permits residents to keep pets that weigh less than 30 pounds. See FAC ¶¶ 17, 42.

• Banks is a lawyer but is not licensed to practice in Virginia or before this Court. See Pls.' Resp. to Mot. to Dismiss (Dkt. 31) ("Opp'n Br.").

• Britton resides with Banks and has provided him with a power of attorney presumably to act on her behalf in connection with this action. Id. at 12-13.

• In January 2019, Banks purchased a unit within Fountains Condominiums. FAC ¶ 23. On February 23, 2019, plaintiffs moved into Banks' unit. Id. ¶ 37.

• Both plaintiffs allegedly suffer from diagnosed, but not described, mental health conditions. Id. ¶ 38.

• Banks alleges that he was prescribed his dog as an emotional support animal. Id. ¶ 39.

• Banks' dog is over the weight limit for pets to reside at the Fountains Condominiums. Id. ¶ 43.

• Banks requested, as an accommodation for his alleged mental health condition, that the Condo Defendants⁷ grant an exception to the weight limit policy at the Fountains Condominiums and that his dog be permitted to reside in his condominium unit. Id. ¶ 44. The Condo Defendants granted Banks' request and the dog was permitted to reside in plaintiffs' condominium unit despite being over the allowed pet weight limit. Id. ¶ 46.

• In March 2019, Jane Doe, a resident of the Fountains Condominiums, saw Banks and his dog in an elevator. Jane Doe asked Banks how the dog got in the building and Banks explained that the dog had permission to be present. Jane Doe then said the Board of Directors would not approve and that she would not vote for the dog's presence in the Fountains Condominiums. Id. ¶¶ 47-52.

• Also, in March 2019, John Doe, another resident of the Fountains Condominiums, approached Britton while she was walking Banks' dog. John Doe called the dog a "fighting dog," demanded to know how the dog got into the building and threatened to kill the dog if it came near him or his own dog. Plaintiffs reported the incident to the police and to a Gates Hudson employee, Quiana Bennet.⁸Id. ¶¶ 54-57. Bennet said that John Doe had already yelled at her about the dog. Id. ¶ 58.

• In April or May 2019, Jane Doe again approached Banks and his dog while they were outside of the condominium building. Jane Doe yelled at Bank about the dog relieving himself outside. As Jane Doe approached Banks, Jane Doe's dog also began to bark at Banks' dog. Banks pulled his dog away and continued on his walk. When Banks returned to the building, Jane Doe blocked the entrance. Banks stated that the need to go inside and Jane Doe moved aside. Id. ¶¶ 61-71.

• In May 2019, Latoya Edwards, the Director of the Board of Directors, saw Britton walking the dog. Edwards began yelling at Britton about whether the dog was registered with the building and that the dog did not have permission to be in the building. Britton replied that the dog was registered and walked away. Id. ¶¶ 72-76.

• On July 5, 2019, Jane Doe approached plaintiffs while they were walking the dog. Jane Doe began yelling about the dog relieving himself. Plaintiffs ignored Jane Doe and her dog, which was barking. Banks had to choke his own dog to pull his dog away from Jane Doe and her dog. Id. ¶¶ 78-83.

• On two occasions, Banks emailed complaints to Bennet. Id. ¶ 90.

• In response, the Gates Hudson Defendants now posts signs urging occupants to register pets. Id. ¶ 89.

II.

The well-settled motion to dismiss standard does not require extensive elaboration. As the Supreme Court has made clear, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). Importantly, in making this determination, a district court must "accept as true all well-pled facts in the complaint and construe them in the light most favorable to [the plaintiff]." United States v. Triple Canopy, Inc., 775 F.3d 628, 632 n.1 (4th Cir. 2015). But a district court is not bound to "accept as true a legal conclusion couched as a factual allegation." Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014).

III.

In the motion to dismiss, the Condo Defendants seek dismissal of any claims brought by Britton. Britton did not sign the Amended Complaint and no counsel has entered an appearance on her behalf. See FAC at 24. In the opposition brief, Banks asserts that he has a power of attorney from Britton which authorizes him to prosecute this matter on her behalf. Opp'n Br. at 11.⁹

As plaintiffs acknowledge, "[e]very pleading . . . must be signed . . . by a party personally if the party is unrepresented." Opp'n Br. at 11 (citing Rule 11(a), Fed. R. Civ. P.). Plaintiffsargue that because Britton has provided Banks with a power of attorney Britton is properly represented by Banks. This is incorrect; Britton may not be represented by Banks. Banks concedes that he is proceeding pro per, but as the Fourth Circuit has held, "[t]he right to litigate for oneself, . . . does not create a coordinate right to litigate for others." Myers v. Loudoun Cnty. Pub. Schs., 418 F.3d 395, 400 (4th Cir. 2005). And this is so even where there is a power of attorney for courts have uniformly recognized that a "power of attorney may confer[] certain decision-making rights under state law, but it does not allow him to litigate pro se on behalf of his [girlfriend] in federal court." In re Radogna, 331 F.App'x 962, 964 (3d Cir. 2009).¹⁰ Banks' inability to represent Britton pro se provides a basis to dismiss all of the claims brought by Britton. See McHam v. Wells Fargo Bank, No., 2014 WL 7186924, at *3 (M.D.N.C. Dec. 17, 2014) (dismissing claims brought by pro se power of attorney on behalf of plaintiff). In any event, the analysis here will proceed on the assumption that Britton is proceeding pro se and that she adopts the allegations in the FAC and the arguments that Banks makes in opposition to the motion to dismiss. But it must be clear that Banks does not represent Britton. If Britton wishes to be represented by counsel, then she must retain an attorney or, if she chooses not to do so, she may proceed pro se. Nonetheless, Britton's claims will be considered on the merits.

IV.

As an initial matter, it is important to address the status of Defendant John Doe, an unidentified resident of the Fountains Condominiums. On November 18, 2019, plaintiffssubmitted an executed summons as to John Doe, which asserts that the summons and complaint was served on Quiana Bennett, Assistant Property Manager who was authorized to accept service on behalf of John Doe. See Proof of Service at 20 (Dkt. 22). Plaintiffs have not moved for an entry of default against John Doe. John Doe's name has never been revealed and thus Bennett could not have known who she was accepting service on behalf of and whether she was authorized to accept such service. Service on John Doe therefore was not properly accomplished.¹¹

Nonetheless it is appropriate to consider the claims against John Doe based on the arguments made by the Condo Defendants in their motion to dismiss. See Lee v. Children's Servs. Of Va., No. 05-cv-153, 2005 WL 1279173, at *3 (E.D. Va. 2005) (dismissing claim against "all defendants, served and unserved").¹² Accordingly, the Court will analyze each of the claims against John Doe as well as the Condo Defendants when considering the motion to dismiss.

V.

The Condo Defendants seek to dismiss the federal claims against them. In Counts I, II, and XIV, plaintiffs assert the following claims under federal law: (i) violations of 42 U.S.C.§ 1983; (ii) violations of the Fair Housing Act; (iii) § 504 of the Rehabilitation Act; and (iv) 42 U.S.C. § 1985. Each of the federal claims is analyzed separately.

A.

Count I asserts a claim under 42 U.S.C. § 1983 against the Condo Defendants and John Doe. The Condo Defendants assert that, because they are not state actors, plaintiffs cannot state a plausible claim for relief against them under § 1983. Plaintiffs argue that they have alleged that...