Belcher v. Grand Reserve MGM, LLC

• Citation: 269 F.Supp.3d 1219
• Decision Date: 12 September 2017
• Docket Number: CIVIL ACTION NO. 2:15–CV–834–KS–TFM
• Parties: Kimberly BELCHER, et al., Plaintiffs v. The GRAND RESERVE MGM, LLC, et al., Defendants
• Court: U.S. District Court — Middle District of Alabama

269 F.Supp.3d 1219

Kimberly BELCHER, et al., Plaintiffs

v.The GRAND RESERVE MGM, LLC, et al., Defendants

CIVIL ACTION NO. 2:15–CV–834–KS–TFM

United States District Court, M.D. Alabama, Northern Division.

Signed September 12, 2017

James E. Long, Law Offices of James E. Long, Montgomery, AL, for Kimberly Belcher, et al.

Emily Coody Marks, Miland Fredrick Simpler, III, Ball Ball Matthews & Novak PA, Montgomery, AL, for The Grand Reserve MGM, LLC, et al.

MEMORANDUM OPINION AND ORDER

Keith Starrett, UNITED STATES DISTRICT JUDGE

For the reasons below, the Court grants in part and denies in part Defendants' Motion for Summary Judgment [62] and denies Plaintiffs' Amended Motion for Partial Summary Judgment [56].

I. BACKGROUND

This case involves claims under the Fair Housing Act ("FHA"),¹ the Alabama Fair Housing Law ("ALFHL"),² and Alabama common law. Defendants own and rent apartments at the Grand Reserve Pike Road apartment complex in Montgomery, Alabama. Plaintiffs are an African–American family that moved in to the Grand Reserve in August 2014. Plaintiff Dedric Belcher moved out in January 2016, and the remaining Plaintiffs moved out in the summer of 2016.

Plaintiffs claim that Defendants created and enforced rules that were designed to discriminate against African–American residents, residents with children, and residents with disabilities. Plaintiffs also claim that the rules had a disparate impact on African–American residents, residents with children, and residents with disabilities. Specifically:

• From March 2015 to September 2015, Defendants enforced a rule (the "Adult Supervision Rule") which required that "[c]hildren 17 and under ... be supervised by an adult older than 19 years of age ... when out on the property; excluding traveling to and from the school bus area."³

• From March 2015 to September 2015, Defendants enforced a rule (the "Curfew Rule") which required that "[a]ll children under 18 years of age unless unaccompanied by an adult must be inside of their apartment no later than 8:30 pm CST."⁴

• From March 2015 to September 2015, Defendants enforced a rule (the "Playground Rule") which provided that "[t]he use of the playground is only for elementary children, grades K–6. It is not a spot to hangout or loiter."⁵

• From May 2012 to present, Defendants have enforced a rule (the "Pool Rule") which provided that "children under 19 years of age cannot be at the pool without the accompaniment of an adult," and that "everyone in the apartment home must wear a wristband at the pool."⁶

• Finally, from the spring or summer of 2015 to September 2015, Defendants enforced a rule (the "Gym Rule") which provided that the "Gym/Sauna is off limits to anyone below the age of 19. The Gym is not a place to hangout. Any resident in the facility below the proper age will be subject to a minimum $200 fine."⁷

Plaintiffs also claim that Defendants retaliated against them with harassment, threats, and fines when they complained about these rules and/or attempted to enjoy the complex's facilities. Finally, Plaintiffs contend that Defendants steered African–American residents to apartments at the back of the apartment complex, while reserving apartments in the front for white residents.

Plaintiffs filed this lawsuit, claiming that Defendants violated the FHA's prohibitions of discrimination on the basis of race, familial status, and disability, and of retaliation for the enjoyment of rights secured by the FHA, as provided by 42 U.S.C. §§ 3604(a) - (c), 3617. Plaintiffs also claim that Defendants violated the ALFHL's similar prohibitions of discriminatory housing practices, provided by Ala. Code §§ 24–8–4(1) – (2), 24–4–8. Finally, Plaintiffs asserted common-law claims of negligence per se, breach of contract, and breach of the covenant of quiet enjoyment. Plaintiffs seek injunctive relief, compensatory damages, punitive damages, costs, and attorney's fees. The parties filed cross-motions for summary judgment, which the Court now addresses.

II. STANDARD OF REVIEW

Rule 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a) ; see also Alexandra H. v. Oxford Health Ins. Inc. , 833 F.3d 1299, 1306 (11th Cir. 2016). "A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable [fact-finder] to return a verdict in its favor." Fla. Int'l Univ. Bd. of Trs. v. Fla. Nat'l Univ., Inc. , 830 F.3d 1242, 1252 (11th Cir. 2016). "In deciding whether a material disputed fact precludes summary judgment, a court generally must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Id. But "conclusory allegations without specific supporting facts have no probative value. One who resists summary judgment must meet the movant's [evidence] with opposing [evidence] setting forth specific facts to show why there is an issue for trial." Leigh v. Warner Bros. , 212 F.3d 1210, 1217 (11th Cir. 2000). "In practice, cross motions for summary judgment may be probative of the nonexistence of a factual dispute ...." Ga. State Conf. of the NAACP v. Fayette County Bd. of Comm'rs , 775 F.3d 1336, 1345 (11th Cir. 2015). But "the mere filing of cross motions for summary judgment d[oes] not warrant the entry of summary judgment." Id.

III. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [62]

In their motion, Defendants seek summary judgment on numerous issues. The Court will address each in turn.

A. Sham Affidavits

Defendants argue that Plaintiffs filed "sham affidavits" that contradict testimony provided in their depositions, and that the Court should disregard the affidavits accordingly. Plaintiffs did not respond to this argument.

"The Eleventh Circuit, in limited circumstances, allows a court to disregard an affidavit as a matter of law when, without explanation, it flatly contradicts his or her own prior deposition testimony for the transparent purpose of creating a genuine issue of fact where none existed previously." Furcron v. Mail Ctr. Plus, LLC , 843 F.3d 1295, 1306 (11th Cir. 2016). However, every discrepancy does not create a sham affidavit. Tippens v. Celotex Corp. , 805 F.2d 949, 953–54 (11th Cir. 1986). For example, where the "apparent contradiction derives not from purposeful fabrication but instead from dialectical misunderstanding," the "contradiction becomes an issue of credibility or goes to the weight of the evidence." Strickland v. Norfolk S. Ry. , 692 F.3d 1151, 1162 (11th Cir. 2012). Likewise, a "failure of memory ... create[s] an issue of credibility as to which part of the testimony should be given greatest weight if credited at all." Tippens , 805 F.2d at 954. "An affidavit may only be disregarded as a sham when a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact ... and that party attempts thereafter to create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony." Id.

First, Defendants contend that the minor Plaintiffs' affidavits should be stricken because they testified at deposition that they do not know the meaning of certain words used in the affidavits, such as "harass" and "premises." This alleged contradiction is not sufficient to strike their affidavits as "sham affidavits," particularly in light of the fact that the affiants in question are minors. If the minor Defendants testify at trial, Defendants will be free to cross-examine them as they deem necessary.

Next, Defendants argue that minor Plaintiff A. S.'s affidavit testimony that she had a dream about Brittany Allen, Defendants' employee, should be stricken because A. S. directly testified at deposition that she never had a dream about Allen. Defendants are correct that A. S. "flatly contradict[ed] his or her own prior deposition testimony" on this minor issue, but they have not demonstrated that A. S. did so "for the transparent purpose of creating a genuine issue of fact where none existed previously." Furcron , 843 F.3d at 1306. Again, the Court notes that the affiant is a minor. The Court declines to strike the affidavit testimony, but if A. S. testifies at trial, Defendants will be free to cross-examine her as they deem necessary.

These are the only specific examples of "sham affidavit" testimony Defendants outlined in briefing, despite claiming that "Plaintiffs' affidavits are rife with statements that were later contradicted or controverted in their deposition testimony." See Brief in Support of Motion for Summary Judgment at 33, Taylor v. Hughes , No. 2:15–CV–834–KS–TFM (M.D. Ala. Oct. 28, 2016), ECF No. 63. The Court declines to sift through Plaintiffs' affidavits and deposition transcripts and make Defendants' arguments for them. Defendants' Motion for Summary Judgment is denied as to this issue.

B. Injunctive Relief

Defendants argue that Plaintiffs lack standing to seek injunctive relief because they are no longer residents at the Grand Reserve apartments. Plaintiffs did not respond to this argument.

The Court already addressed this issue as it relates to Mr. Belcher. In his Report and Recommendation of February 24, 2016, the Magistrate Judge noted that Mr. Belcher had moved out of the Grand Reserve. Belcher v. Grand Reserve MGM, LLC , No. 2:15–CV–834, 2016 WL 920104, at *3, 2016 U.S. Dist. LEXIS 31848, at *7–*8 (M.D. Ala. Feb. 24, 2016). Accordingly, the Magistrate Judge concluded that Mr. Belcher lacked standing to seek prospective injunctive relief. Id. at *3, 2016 U.S. Dist. LEXIS 31848, at *8. The Court adopted the Report and Recommendation on March 10, 2016. See Order, Belcher v. Grand Reserve MGM, LLC , No. 2:15–CV–834–KS–TFM, 2016 WL 927188 (M.D. Ala. Mar. 10, 2016), ECF No. 47. The same reasoning applies here.

A plaintiff's standing to seek injunctive relief "depends on...